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ECLI:EU:C:2013:583 1

JUDGMENT OF THE C OURT (Grand C hamber)

24 Sept ember 2013

Language of the case: German.

(EEC -Turkey Associat ion Agreement — Addit ional Prot ocol — Art icle 41(1) — ‘St andst ill’ clause —

Visa requirement for admission t o t h e t errit ory of a Member St at e — F reedom to provide services —

Th e righ t of a Turkish nat ional t o ent er a Member St ate in order t o visit a family member and,

pot entially, to receive services)

In Case C -221/11,

REQUEST for a preliminary ruling under Art icle 267 TFEU from t he Oberverw alt ungsgerich t

B erlin-Brandenburg (Germany ), made by decision of 13 April 2011, received at t he C ourt on 11 May

2011, in t h e proceedings

Leyla E c em Demir kan

v

Bundesr epublik Deutsc hland,

THE C OURT (Grand C hamber),

composed of V. Skouris, President , K . Lenaerts, Vice-President , A. Tiz zano, L. B ay Larsen, T. von

Danw it z , A. Rosas (Rapport eur) and M. B erger, President s of C h ambers, E. Levit s, A. Ó C aoimh ,

J.-C . Bonich ot , A. Arabadjiev, C . Toader, J. -J. K asel, M. Safjan and D. Šváby , Judges,

Advocate General: P. Cruz Villalón,

Regist rar: M. Aleksejev, Administ rat or,

h aving regard t o t he w rit t en procedure and furt her t o t h e h earing on 6 November 2012,

af ter considering t h e observat ions submit ted on beh alf of:

— Ms Demirkan, by R. Gut mann, Rech t sanw alt ,

— t he German Government , by T. Henz e, J. Möller and K . Hailbronner, acting as Agent s,

— t he C zech Government , by M. Smolek, act ing as Agent ,

— t he Danish Government , by C . Vang and V. Past ernak Jørgensen, act ing as Agents,

— t he Est onian Government , by M. Linnt am, act ing as Agent ,

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— t he Greek Government , by G. K aripsiades and T. Papadopoulou, acting as Agent s,

— t he F rench Government, by G. de Bergues, D. Colas and B . Beaupère-Manokh a, acting as Agent s,

— t he Net herlands Government , by B . Koopman, M. B ult erman and C . Wissels, act ing as Agent s,

— t he Slovak Government , by B . Ricz iová, act ing as Agent ,

— t he Unit ed K ingdom Government , by S. Ossow ski and L. C hrist ie, acting as Agents, and by R.

Palmer, Barrist er,

— t he C ouncil of t h e European Union, by J. Mont eiro, E. F innegan and Z . Kupčová, act ing as Agent s,

— t he European C ommission, by G. Braun and G. W ils, acting as Agents,

af ter h earing t h e Opinion of t h e Advocat e General at t he sit t ing on 11 April 2013,

gives t h e follow ing

Judgment

1 Th is request f or a preliminary ruling concerns t he int erpretat ion of Art icle 41(1) of t he Additional

Prot ocol wh ich w as signed in B russels on 23 November 1970 and concluded, approved and confirmed

on beh alf of t he C ommunity by C ouncil Regulat ion (EEC) No 2760/72 of 19 December 1972 (OJ 1973

C 113, p. 17) (‘t h e Additional Prot ocol’), in part icular t h e not ion of ‘freedom to provide services’ in t h at

provision.

2 Th e request has been made in proceedings bet w een Ms Demirkan, a Turkish nat ional, and t h e

B undesrepublik Deut sch land concerning t h e reject ion by t he German aut horit ies of h er application for

a visa t o visit h er st ep-f at her, w h o lives in Germany .

Legal c ontext

Euro pean Uni on law

Th e Associat ion Agreement

3 Th e Agreement est ablish ing an Associat ion bet w een t h e European Economic C ommunit y and Turkey

w as signed at Ankara on 12 September 1963 by t h e Republic of Turkey and by t he Member St ates of

t he EEC and t he C ommunity and w as concluded, approved and confirmed on behalf of t he

C ommunity by C ouncil Decision 64/732/EEC of 23 December 1963 (OJ 1973 C 113, p. 1) (‘t he

Associat ion Agreement ’).

4 According to Art icle 2(1) of t he Associat ion Agreement , t he aim of t h e agreement is t o promot e t he

cont inuous and balanced st rengt hening of trade and economic relat ions bet w een t he C ont racting

Part ies w h ich includes, in relation t o t h e workf orce, t he progressive securing of freedom of movement

for w orkers (Art icle 12 of t h e Associat ion Agreement) and t h e abolit ion of rest rictions on freedom of

est ablishment (Art icle 13 of t h e agreement ) and on freedom t o provide services (Article 14 of t he

agreement), wit h a view t o improving t he st andard of living of t he Turkish people and facilitat ing t he

accession of Turkey t o t h e Communit y at a lat er dat e (fourt h recit al in t h e preamble t o and Article 28

of t h e agreement).

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5 F or t he at tainment of t h ose object ives, provision is made for t he gradual int roduct ion of a cust oms

union in t hree st ages. The associat ion est ablished by t h e agreement (‘t h e EEC-Turkey Associat ion’)

t hus provides for a preparatory stage t o enable t he Republic of Turkey t o st rengt hen its economy w it h

aid from t he C ommunity (Art icle 3 of t he agreement), a t ransit ional st age, during w h ich a cust oms

union is t o be progressively establish ed and economic policies aligned more closely (Art icle 4 of t he

agreement) and a final st age, w h ich is t o be based on t h e cust oms union and is t o ent ail closer

coordinat ion of t he economic policies of t he C ont racting Part ies (Article 5 of t he agreement).

6 Art icle 6 of t h e Associat ion Agreement is worded as follow s:

‘To ensure t h e implement at ion and t he progressive development of t h e Association, t h e C ont ract ing

Part ies sh all meet in a C ouncil of Associat ion wh ich sh all act wit hin t h e pow ers conf erred upon it by

t his Agreement .’

7 Art icle 8 of t he Associat ion Agreement, w h ich is in Tit le II, h eaded ‘Implementat ion of t he t ransitional

st age’, provides as follow s:

‘In order t o at tain t he object ives set out in Article 4, t he C ouncil of Associat ion sh all, before t h e

beginning of t he t ransit ional st age and in accordance w it h t he procedure laid dow n in Article 1 of t he

Provisional Prot ocol, det ermine t he conditions, rules and t imetables f or t h e implementat ion of t h e

provisions relat ing t o t he fields covered by t he Treat y establish ing t he C ommunity w h ich must be

considered; t his sh all apply in part icular t o such of t hose fields as are mentioned under t h is Tit le and

t o any prot ect ive clause w h ich may prove appropriat e. ’

8 Art icle 14 of t he Associat ion Agreement , w h ich is also in Tit le II, is w orded as f ollow s:

‘Th e C ont ract ing Parties agree t o be guided by Articles [45 EC ], [46 EC] and [48 EC ] t o [54 EC] for t h e

purpose of abolish ing rest rict ions on freedom to provide services betw een t hem. ’

9 Art icle 22(1) of t h e Associat ion Agreement provides as follow s:

‘In order t o at tain t h e objectives of t h is Agreement t he C ouncil of Associat ion shall h ave t he pow er t o

t ake decisions in t h e cases provided for t herein. Each of t he Part ies sh all t ake t he measures necessary

t o implement t he decisions t aken. … ’

Th e Additional Prot ocol

10 Th e Addit ional Protocol – w h ich , in accordance wit h Art icle 62 t hereof, forms an int egral part of t he

Associat ion Agreement – lay s dow n, as st at ed in Article 1, t he conditions, arrangements and t imetables

for implementing t he t ransit ional st age referred t o in Art icle 4 of t h e Associat ion Agreement .

11 Tit le II of t he Addit ional Prot ocol, h eaded ‘Movement of persons and services’, includes C h apt er I,

w h ich concerns ‘[w ]orkers’, and C hapter II , w hich concerns ‘ [r]igh t of est ablish ment , services and

t ransport ’.

12 Art icle 41 of t he Additional Prot ocol, wh ich is in C hapter II of Tit le II, is w orded as follow s:

‘1. The C ont ract ing Parties sh all refrain from int roducing bet w een t h emselves any new restrict ions on

t he freedom of est ablish ment and t he freedom to provide services.

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JUDGMENT OF 24. 9. 2013 – CASE C-221/11

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2. The C ouncil of Associat ion sh all, in accordance w it h t he principles set out in Art icles 13 and 14 of

t he Agreement of Associat ion, det ermine t he t imetable and rules f or t he progressive abolit ion by t h e

C ont racting Part ies, betw een t h emselves, of rest rictions on f reedom of est ablishment and on freedom

t o provide services.

Th e C ouncil of Associat ion sh all, wh en det ermining such t imet able and rules for t he various classes of

act ivity , t ake int o account corresponding measures already adopt ed by t h e C ommunity in t hese fields

and also t he special economic and social circumstances of Turkey . Priorit y sh all be given t o act ivit ies

making a part icular cont ribut ion t o t h e development of product ion and t rade. ’

13 On t he basis of Art icle 41(2) of t h e Additional Prot ocol, t he Associat ion C ouncil adopt ed Decision

No 2/2000 of 11 April 2000 on t h e opening of negotiat ions aimed at t he liberalisat ion of services and

t he mut ual opening of procurement market s bet w een t he C ommunit y and Turkey (OJ 2000 L 138,

p. 27). How ever, as yet , no subst ant ive liberalisat ion of services of t h at kind h as been agreed by t he

Associat ion C ouncil.

14 Art icle 59 of t h e Addit ional Prot ocol, wh ich appears in Tit le IV (‘ General and f inal provisions’ ), is

w orded as f ollow s:

‘In t h e fields covered by t his Prot ocol Turkey sh all not receive more favourable t reat ment t han t hat

w h ich Member St at es grant t o one anot her pursuant t o t he Treat y establishing t he C ommunity . ’

Regulation (EC ) No 539/2001

15 Art icle 1(1) of C ouncil Regulation (EC) No 539/2001 of 15 March 2001 list ing t he t hird count ries

w h ose nationals must be in possession of visas wh en crossing t h e ext ernal borders and t hose w h ose

nat ionals are exempt from t hat requirement (OJ 2001 L 81, p. 1) provides as follow s:

‘Nat ionals of t h ird count ries on t h e list in Annex I shall be required t o be in possession of a visa w h en

crossing t he ext ernal borders of t h e Member St at es. ’

16 Th e Republic of Turkey is on t h e list in Annex I. Recit al 1 in t he preamble to Regulat ion No 539/2001

refers t o t h e fact t hat Art icle 61 EC cites t h e list of t hird count ries wh ose nationals must be in

possession of a visa w h en crossing t h e ext ernal borders of t he Member St at es and t hose w h ose

nat ionals are exempt from t hat requirement ‘among t h e flanking measures w h ich are direct ly linked

t o t he free movement of persons in an area of freedom, securit y and just ice’.

G erman law

German law as it st ood on 1 January 1973

17 It is apparent from t he order f or reference t h at , on 1 January 1973, t he dat e on w h ich t he Addit ional

Prot ocol entered into force as regards t h e Federal Republic of Germany , t hat Member St ate’s

domest ic law did not require Turkish nat ionals t o obt ain a visa t o ent er German t errit ory if t h e

purpose of t h e st ay w as t o visit a family member.

18 On t h e basis of point 1 of Article 5(1) of t h e Verordnung z ur Durch füh rung des Ausländergeset zes

(Regulat ion implementing t h e Law on foreign nat ionals) of 10 Sept ember 1965 (B GB 1. 1965 I,

p. 1341), in t he version of 13 Sept ember 1971 (B GB1. 1971 I, p. 1743), in conjunct ion w it h t he annex

t o t h e implementing regulat ion, Turkish nationals w ere required t o obt ain a residence permit in t he

form of a visa in order t o ent er German t erritory only if t hey intended t o work in Germany .

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19 Turkish nat ionals w ere not subject t o a general visa requirement unt il t he Elevent h Regulation

amending t h e Regulat ion implementing t he Law on foreign nat ionals of 1 July 1980 (B GB l. 1980 I,

p. 782).

Th e relevant provisions of German law at t he material t ime in t he main proceedings

20 It is apparent from t h e order for reference t hat , for Turkish nat ionals such as t h e applicant in t h e main

proceedings, t he requirement t o obtain a visa in order t o ent er Germany is establish ed by t h e f irst

sent ence of Art icle 4(1) of t he Geset z über den Aufent halt , die Erw erbst ät igkeit und die Int egrat ion

von Ausländern im B undesgebiet (Aufent halt sgeset z – Aufent hG) (t he Law on t he residence,

employ ment and integrat ion of foreign nat ionals in nat ional t errit ory ) (BGB 1. 2004 I, p. 1950) (‘t he

Law on t h e residence of foreign nat ionals’).

21 Under t he h eading ‘ Requirement for a residence permit ’, Art icle 4(1) of t he Law on t he residence of

foreign nat ionals provides as follow s:

‘F oreign nat ionals sh all require a residence permit t o enter and reside w it hin F ederal German territ ory

unless t he law of t he European Union or regulations sh ould provide ot herw ise or unless t here is a righ t

of residence under t he [Associat ion Agreement ] … ’

T h e dispute in th e main pr o ceedings and the questions r efer red fo r a pr eliminar y r uling

22 In October 2007, Ms Demirkan, a Turkish nat ional born in 1993, applied t o t h e German embassy in

Ankara (Turkey ) for a visa in order t o visit her st ep-fat her, a German nat ional living in Germany. In

response t o t he reject ion of h er applicat ion, Ms Demirkan brough t an act ion before t he

Verw alt ungsgerich t Berlin (Administ rat ive Court , Berlin).

23 Ms Demirkan sough t a declarat ion from t h at court t hat she w as ent it led t o ent er German t erritory

w it hout a visa. In t h e alt ernat ive, sh e sough t annulment of t he decision reject ing her visa application

and a declaration t hat t he Federal Republic of Germany w as obliged t o grant h er a visit or’s visa.

24 According t o Ms Demirkan, it is apparent from t h e ‘st andst ill’ clause in Art icle 41(1) of t he Additional

Prot ocol t hat she does not need a visa for h er proposed st ay in Germany , t he purpose of w h ich is t o

visit h er step-fat her. As such a visit w ill necessarily ent ail t h e decisive element – receipt of services –

sh e is ent it led, as t h e beneficiary of such services, t o t he t ourist visa applied for. At t he dat e of t h e

ent ry int o force of t he Addit ional Prot ocol as regards t h e F ederal Republic of Germany , t hat Member

St ate’s domest ic law exempt ed Turkish nat ionals f rom t h e requirement t o obt ain a residence permit

t o ent er German t erritory if t h ey did not intend t o st ay t h ere for more t h an t h ree mont h s or to work

t here.

25 B y judgment of 22 Oct ober 2009, t he Verw alt ungsgerich t Berlin dismissed t hat applicat ion, t aking t h e

view t h at Ms Demirkan did not enjoy any righ t to ent er German t erritory w it hout a visa. In particular,

sh e could not rely on t h e ‘st andstill’ clause in Art icle 41(1) of t he Addit ional Protocol, since t hat clause

w as not applicable t o a residence permit for t he purposes of a f amily visit . According t o t h at court , t he

‘st andstill’ clause did not confer on Turkish nationals a general righ t to freedom of movement

independent of any economic act ivit y pursued.

26 Ms Demirkan appealed against t hat decision before t he Oberverw alt ungsgerich t Berlin-Brandenburg

(High er Administ rat ive Court , Berlin-Brandenburg).

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27 Th at court observes t h at under bot h national law , namely t he first sentence of Art icle 4(1) of t h e Law

on t h e residence of foreign nat ionals, and under European Union law, t hat is, Art icle 1(1) of and

Annex I to Regulat ion No 539/2001, Ms Demirkan is required t o obt ain a visa in order t o enter

German t errit ory . C onsequent ly , if sh e h ad a righ t t o enter w it hout a visa, t hat could only be on t he

basis of Art icle 41(1) of t h e Additional Prot ocol.

28 Th e referring court points out t hat , on 1 January 1973, t he dat e of ent ry int o force of t he Addit ional

Prot ocol as regards t he F ederal Republic of Germany , t here w as no requirement under German law t o

obtain a visa for a st ay t he purpose of wh ich w as a family visit , such as t h at proposed by Ms Demirkan.

How ever, t hat court observes t h at t he C ourt ’s case-law , in particular C ase C -228/06 S o ysal and S avatli

[2009] ECR I-1031, gives no indicat ion as t o w h et her t h e proh ibit ion on introducing any new

rest rictions on t h e f reedom t o provide services laid dow n in Art icle 41(1) of t he Addit ional Prot ocol

ext ends t o w h at is referred t o as ‘passive’ freedom t o provide services, namely t he freedom f or t he

recipient s of services in one Member St at e t o t ravel t o anot her Member St ate in order t o t ake

advantage of t he provision of services. In Germany , t hat issue h as been t he subject of much debate in

bot h case-law and legal literat ure. Th e prevailing opinion in Germany is t hat t he ‘st andstill’ clause

covers bot h active and passive freedom t o provide services.

29 Sh ould t h e answ er t o t he first question referred be t h at t he not ion of freedom t o provide services

w it hin t he meaning of Art icle 41(1) of t h e Addit ional Protocol also encompasses passive f reedom t o

provide services, it w ill remain t o be considered, according t o t he nat ional court , w h et her Turkish

nat ionals wh o w ish to t ravel t o Germany t o visit relat ives for a st ay of up t o t hree mont hs and w h o

simply rely on t he mere possibilit y of obtaining services are covered by t he ‘st andst ill’ clause.

30 Th e referring court st at es t hat some German academic legal w riters rely , for t h e purpose of advocat ing

a broad int erpret ation of t he scope of passive f reedom to provide services, on paragraph 15 of t he

judgment in C ase C -274/96 Bick el and Franz [1998] EC R I-7637, in w h ich t he C ourt h eld t hat passive

freedom t o provide services applies t o all nat ionals of Member St at es wh o, independent ly of ot her

freedoms guaranteed by European Union law , visit anot h er Member St ate ‘ w here t hey int end or are

likely t o receive services’ .

31 In t hose circumstances, t he l’ Oberverw alt ungsgerich t Berlin-Brandenburg decided t o stay proceedings

and t o refer t o t he C ourt t he follow ing quest ions f or a preliminary ruling:

‘(1) Does passive f reedom t o provide services fall w it hin t he scope of t h e concept of freedom t o

provide services w it h in t he meaning of Art icle 41(1) of t h e [Addit ional Protocol]?

(2) In t h e event t hat t he first quest ion is answ ered in t he affirmat ive: does t he protect ion of passive

freedom t o provide services under Art icle 41(1) of t h e Additional Prot ocol also ext end t o Turkish

nat ionals w h o – like t he appellant in t he main proceedings – do not w ish t o enter t he F ederal

Republic of Germany in order t o receive a specific service, but for t he purposes of visit ing

relatives for a st ay of up t o t hree mont hs and rely on t h e mere possibilit y of receiving services in

Germany ?

Question 1

32 B y it s first quest ion, t h e referring court asks, in essence, w h et her t he notion of ‘freedom t o provide

services’ in Article 41(1) of t h e Addit ional Prot ocol is to be int erpreted as encompassing t h e freedom

for Turkish nationals wh o are service recipient s t o visit a Member St at e in order t o obt ain services.

33 It should be not ed at t he out set t hat under Art icle 56 TFEU rest rict ions on freedom t o provide services

w it hin t h e Union are proh ibit ed in respect of nat ionals of Member St at es w h o are est ablish ed in a

Member St at e ot her t han t hat of t he person for w h om t he services are int ended.

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34 At paragraph 10 of t he judgment in Joined C ases 286/82 and 26/83 L uisi and Carbo ne [1984] EC R 377,

t he C ourt int erpreted t h e notion of ‘ freedom t o provide services’ wit hin t he meaning of Art icle 59 of

t he EEC Treat y (subsequent ly Art icle 59 of t h e EC Treat y , w h ich , in t urn, after amendment , became

Art icle 49 EC ), w h ich now corresponds t o Article 56 TF EU. It found t hat , in order t o enable services

t o be provided, t h e person providing t h e service may go t o t he Member St at e w h ere t he person for

w h om it is provided is establish ed or else t h e lat ter may go t o t he St ate in w h ich t he person providing

t he service is est ablished. It st ated, inter alia, t hat w h ilst t he former case is expressly ment ioned in t he

t hird paragraph of Article 60 of t he EEC Treat y (subsequent ly t he t hird paragraph of Article 60 of t he

EC Treat y , wh ich in t urn became t he t h ird paragraph of Art icle 50 EC ), w h ich now corresponds t o t he

t hird paragraph of Art icle 57 TF EU and permit s t he person providing t h e service t o pursue h is act ivit y

t emporarily in t h e Member St ate wh ere t he service is provided under t he same condit ions as are

imposed by t h at St ate on its ow n nat ionals, t he lat ter case is t h e necessary corollary t h ereof, w h ich

fulfills t he object ive of liberalising all gainful activit y not covered by t h e free movement of goods,

persons and capital.

35 Accordingly , it is t h e C ourt ’s est ablish ed case-law t hat t he freedom t o provide services conferred by

Art icle 56 TF EU on Member St at e nationals, and t h us on European Union citiz ens, includes ‘passive’

freedom t o provide services, namely t he freedom for recipient s of services t o go t o anot h er Member

St ate in order t o receive a service t here, w it hout being h indered by rest rict ions (Luisi and Carbo ne,

paragraph 16; C ase 186/87 Co wan [1989] EC R 195, paragraph 15; Bick el and Franz , paragraph 15; C ase

C -348/96 Calfa [1999] EC R I-11, paragraph 16; and C ase C -215/03 O ulane [2005] EC R I-1215,

paragraph 37).

36 Art icle 56 TF EU t herefore covers all European Union citiz ens wh o, independently of ot her freedoms

guaranteed by t he F EU Treaty , visit anot her Member St at e w h ere t hey intend or are likely t o receive

services (see, to t h at ef fect , Bick el and Franz, paragraph 15). According t o t hat case-law , t ourist s,

persons receiving medical t reat ment and persons t ravelling for t h e purpose of educat ion or business

are t o be regarded as recipients of services (Luisi and Carbo ne, paragraph 16).

37 As regards t h e stat us conferred on Turkish nat ionals under t he Associat ion Agreement , Art icle 41(1)

of t h e Addit ional Prot ocol lay s dow n – as is apparent from its very w ording – in clear, precise and

uncondit ional t erms, an unequivocal ‘st andst ill’ clause, w h ich proh ibit s t h e C ont ract ing Part ies from

int roducing new rest rict ions on freedom of est ablishment and freedom t o provide services w it h ef fect

from t he dat e of ent ry int o force of t h e Addit ional Protocol (see, w it h regard t o rest rictions on

freedom of est ablish ment , Case C-37/98 S avas [2000] EC R I-2927, paragraph 46).

38 It is t he C ourt ’s est ablished case-law t hat Article 41(1) of t he Addit ional Prot ocol h as direct effect . As a

consequence, t hat provision may be relied on by t he Turkish nationals t o w h om it applies before t h e

court s or t ribunals of t he Member St ates (see, t o t hat ef fect , S avas, paragraph 54; Joined C ases

C -317/01 and C -369/01 A batay and Others [2003] EC R I-12301, paragraphs 58 and 59; C ase C -16/05

Tum and Dari [2007] EC R I-7415, paragraph 46; and S oysal and and S avatli , paragraph 45).

39 It sh ould be not ed t h at t he ‘ st andst ill’ clause proh ibit s generally t h e int roduct ion of any new measure

h aving t h e object or ef fect of making t h e exercise by a Turkish nat ional of such economic freedoms in

t he t erritory of a Member St at e subject t o st rict er condit ions t han t hose w h ich applied at t he t ime

w h en t he Addit ional Protocol ent ered int o f orce w it h regard t o t hat Member St ate (see, t o t hat effect ,

S avas, paragraph s 69 and t he fourt h indent of paragraph 71; Abatay and O thers, paragraph 66 and t he

second indent of paragraph 117; and Tum and Dari, paragraph s 49 and 53).

40 Th e C ourt has already h eld t hat Article 41(1) of t he Addit ional Prot ocol may be relied on by an

undertaking est ablished in Turkey w h ich law fully provides services in a Member St at e and by Turkish

nat ionals w h o are lorry drivers employ ed by such an undertaking (A batay and O thers, paragraph s 105

and 106).

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41 It is apparent from S o ysal and S avatli t h at t he ‘st andst ill’ clause in Art icle 41(1) of t he Additional

Prot ocol precludes t he int roduct ion, from t he dat e of ent ry int o force of that prot ocol, of a

requirement t hat Turkish nat ionals are t o h ave a visa t o ent er t he t erritory of a Member St at e in

order t o provide services t h ere on behalf of an undertaking est ablished in Turkey , since, prior t o t hat

dat e, such a visa w as not required.

42 In t he present case, it is necessary t o examine wh et her t h e ‘ st andst ill’ clause in Art icle 41(1) of t h e

Addit ional Protocol is also applicable t o Turkish nat ionals wh o, unlike t h e nationals in t he case w h ich

gave rise t o t h e judgment in S o ysal and S avatli, are not engaged in t he provision of cross-border

services but w ish to go to a Member St at e in order t o obtain services.

43 It is t rue t h at , according t o est ablish ed case-law , t he principles ensh rined in t h e provisions of t he

Treat y relat ing t o freedom t o provide services must be ext ended, so far as possible, t o Turkish

nat ionals t o eliminate rest rict ions on t he f reedom t o provide services betw een t he C ont racting Part ies

(see, to t hat effect , Abatay and O thers, paragraph 112 and t he case-law cit ed).

44 How ever, t he interpretat ion given t o t he provisions of European Union law , including Treaty

provisions, concerning t he internal market cannot be aut omat ically applied by analogy t o t h e

int erpret at ion of an agreement concluded by t h e European Union w it h a non-Member St at e, unless

t here are express provisions t o t h at ef fect laid dow n by t he agreement itself (see, t o t h at effect ,

C ase 270/80 Po lydo r and RS O Reco rds [1982] ECR 329, paragraph s 14 t o 16; C ase C -351/08 G ri mme

[2009] ECR I-10777, paragraph 29; and C ase C -70/09 Hengartner and G asser [2010] EC R I-7233,

paragraph 42).

45 Th e use in Art icle 14 of t h e Associat ion Agreement of t he verb ‘t o be guided by ’ indicat es t hat t he

C ont racting Parties are not obliged t o apply t he provisions of t he Treat y on freedom t o provide

services or indeed t hose adopt ed for t he implementat ion of t hose provisions but simply t o consider

t hem as a source of guidance for t he measures t o be adopt ed in order t o implement t he objectives

laid down in t hat agreement .

46 As st at ed at paragraph 13 above, t he Associat ion Council h as not adopt ed any subst ant ive measure f or

t he liberalisat ion of services. To date, t he associat ion h as conf ined itself t o adopt ing Decision

No 2/2000.

47 Moreover, as t h e C ourt has repeat edly h eld, w h et her it is possible t o ext end t he interpretat ion of a

provision in t h e Treat y t o a comparably, similarly or even ident ically w orded provision of an

agreement concluded by t h e European Union w it h a non-Member St ate depends on, inter alia, t he

aim pursued by each provision in it s ow n part icular context . A comparison bet w een t h e object ives

and context of t he agreement and t hose of t h e Treat y is of considerable import ance in t hat regard

(see C ase C -312/91 Metalsa [1993] EC R I-3751, paragraph 11; C ase C -63/99 G lo sz cz uk [2001] EC R

I-6369, paragraph 49; and C ase C -162/00 Po k rzepto wicz -Meyer [2002] ECR I-1049, paragraph 33).

48 W it h regard in part icular t o t he EEC -Turkey Associat ion, it is apparent from paragraph 62 of t h e

judgment in C ase C -371/08 Z iebell [2011] ECR I-12735 t hat , in deciding wh et her a provision of

European Union law lends itself t o applicat ion by analogy under t hat associat ion, a comparison must

be made bet w een t h e objective pursued by t h e Associat ion Agreement and t he cont ext of w h ich it

forms a part , on t he one h and, and t hose of t h e European Union law inst rument in quest ion, on t he

ot her.

49 It sh ould be noted t hat t here are dif ferences bet w een t he Associat ion Agreement and it s Addit ional

Prot ocol on t h e one h and, and t he Treaty on t h e ot her, on account , int er alia, of t he link t hat exist s

bet w een freedom t o provide services and freedom of movement for persons wit hin t h e European

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Union. In part icular, t he objective of Art icle 41(1) of t he Addit ional Protocol and t he cont ext of t h at

provision are fundament ally dif ferent from t h ose of Article 56 TF EU, especially in so far as concerns

t he applicabilit y of t hose provisions t o recipients of services.

50 F irst of all, wit h regard t o objectives, t he C ourt h as already h eld t hat t he EEC -Turkey Associat ion

pursues a solely economic purpose (Ziebell, paragraph 64). Th e Associat ion Agreement and it s

Addit ional Protocol are int ended essent ially t o promot e t h e economic development of Turkey (S avas,

paragraph 53).

51 Th e fact t hat t he purpose of t he Associat ion Agreement is purely economic is reflect ed in t he w ording

of t he agreement . Th at is apparent from t he t it les of C h apt ers 1, 2 and 3 in Tit le II t o t he agreement ,

relating t o t h e implement at ion of t he t ransit ional st age, t hose t it les being, respect ively , ‘C ust oms

union’, ‘Agricult ure’ and ‘Other economic provisions’. Moreover, Article 14 of t he Associat ion

Agreement , w h ich st at es t h at ‘[t ]he C ont ract ing Part ies agree t o be guided by Art icles [45 EC ], [46

EC ] and [48 EC ] t o [54 EC ] for t h e purpose of abolish ing restrict ions on freedom t o provide services

bet w een t h em’, is in C hapter 3 of Tit le II of t he agreement , t he t it le of w h ich , as indicated above,

expressly refers t o economic mat ters.

52 Moreover, t he Associat ion Agreement is intended, in t he words of Art icle 2(1), ‘to promote t he

cont inuous and balanced strengt hening of t rade and economic relations bet w een t h e part ies, w h ile

t aking f ull account of t he need t o ensure an accelerat ed development of t he Turkish economy and t o

improve t he level of employ ment and t he living conditions of t h e Turkish people’. F urt hermore, t he

second subparagraph of Article 41(2) of t he Addit ional Prot ocol st ates t h at t he Associat ion C ouncil,

w h en det ermining t he t imetable and rules for t h e progressive abolit ion of rest rict ions on freedom of

est ablishment and freedom t o provide services for t h e various classes of act ivit y , is t o t ake into

account analogous measures already adopted by t he European Union in t hese fields and also t h e

special economic and social circumst ances of Turkey .

53 Th e development of economic freedoms for t h e purpose of bringing about freedom of movement for

persons of a general nature w h ich may be compared to t h at af forded t o European Union citiz ens under

Art icle 21 TF EU is not t he object of t he Associat ion Agreement . Neit h er t hat agreement and its

Addit ional Prot ocol nor Decision No 1/80 of t h e Associat ion C ouncil of 19 Sept ember 1980 on t h e

development of t h e Associat ion, w h ich concerns only f reedom of movement for workers, est ablish es

any general principle of freedom of movement of persons bet w een Turkey and t he European Union.

F urt hermore, t he Associat ion Agreement guarant ees t he enjoy ment of cert ain righ t s only w it hin t he

t errit ory of t he h ost Member St at e (see, to t h at ef fect , Case C -325/05 Derin [2007] ECR I-6495,

paragraph 66).

54 Th e C ourt h as repeat edly h eld t h at t he ‘st andst ill’ clause in Art icle 41(1) of t h e Addit ional Prot ocol is

not , in it self, capable of conf erring on Turkish nat ionals – on t h e basis of European Union legislation

alone – a righ t of est ablish ment or, as a corollary, a righ t of residence, or indeed a righ t of freedom t o

provide services or t o enter t h e t errit ory of a Member St ate (see, t o t h at ef fect , S avas, paragraph s 64

and 71, t hird indent; A batay and O thers, paragraph 62; Tum and Dari, paragraph 52; and S oysal and

S avatli , paragraph 47).

55 C onsequent ly , irrespect ive of w h et her freedom of establish ment or f reedom t o provide services in

invoked, it is only w h ere t h e act ivit y in question is t he corollary of t h e exercise of an economic

act ivity t h at t h e ‘ st andst ill’ clause may relate t o t he condit ions of ent ry and residence of Turkish

nat ionals w it hin t he territory of t he Member St at es.

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56 B y contrast , under European Union law , protect ion of passive freedom t o provide services is based on

t he object ive of est ablishing an internal market , conceived as an area wit hout internal borders, by

removing all obst acles t o t h e establish ment of such a market . It is precisely t h at objective w h ich

dist inguish es t he Treat y from t he Associat ion Agreement , w h ich pursues an essent ially economic

purpose, as st at ed at paragraph 50 above.

57 In second place, t he interpret at ion of t he not ion of freedom t o provide services w it hin t he meaning of

t he provisions of t he Associat ion Agreement and it s Additional Prot ocol on t he one h and, and t h e

provisions of t he Treat y on t h e ot her, also depends on t he t emporal cont ext of t hose provisions.

58 It sh ould be noted in t hat regard t h at a ‘standst ill’ clause such as t h at in Art icle 41(1) of t h e Addit ional

Prot ocol does not itself create righ ts. It is a provision w h ich prohibit s t he introduct ion of any new

rest rictive measure by reference t o a specific dat e.

59 As observed by t h e Government s w h ich h ave submit ted observat ions t o t he C ourt , as w ell as t he

C ouncil of t he European Union and t h e European C ommission, freedom of provision of services w as

originally conceived as freedom t o supply services. It w as only in 1984, w it h t he judgment in Luisi and

Carbo ne, t hat t he C ourt clearly indicat ed t hat f reedom of provision of services w it hin t he meaning of

t he Treat y included passive freedom of provision of services.

60 Accordingly , t here is not hing t o indicat e t h at t h e C ont ract ing Part ies t o t he Associat ion Agreement

and t h e Addit ional Protocol envisaged, w h en signing t hose document s, freedom of provision of

services as including passive freedom of provision of services.

61 As t he Advocat e General observed at point 71 of h is Opinion, t he practice of t he Cont ract ing Parties t o

t he Associat ion Agreement provides cert ain indicat ions t o t he contrary . Indeed, numerous Member

St ates int roduced a visa requirement for t ourist visit s by Turkish nat ionals aft er t he ent ry int o force of

t he Addit ional Protocol, and did not consider t his t o be precluded by Art icle 41(1) of t he Addit ional

Prot ocol. The Republic of Turkey it self – according t o t he uncont est ed submissions of t h e German

Government – did likew ise in relation t o t h e K ingdom of B elgium and t he K ingdom of t h e

Net h erlands by revoking, in October 1980, t he exempt ion from t he visa requirement in place in 1973

for B elgian and Dut ch nat ionals w h o are not w orkers.

62 It follow s from all t h e foregoing considerat ions t h at because of dif ferences of bot h purpose and cont ext

bet w een t he Treat ies on t he one h and, and t h e Associat ion Agreement and it s Addit ional Protocol on

t he ot her, t he C ourt’s interpretat ion of Art icle 59 of t h e EEC Treat y in L uisi and Carbo ne cannot be

ext ended t o t h e ‘st andst ill’ clause in Article 41(1) of t h e Additional Prot ocol.

63 In t hose circumst ances, t he answ er t o t h e first quest ion is t hat t he notion of ‘freedom t o provide

services’ in Article 41(1) of t he Addit ional Protocol must be int erpreted as not encompassing freedom

for Turkish nat ionals w h o are t he recipient s of services t o visit a Member St at e in order t o obt ain

services.

Question 2

64 B y it s second question, w h ich depends on an affirmat ive answ er t o t he first quest ion, t he referring

court asks wh et her passive f reedom t o provide services encompasses visits t o family members and t h e

mere possibility of obt aining services.

65 Given t he answ er t o t h e first quest ion, t here is no need t o answer t he second quest ion.

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Co sts

66 Since t hese proceedings are, f or t he parties t o t h e main proceedings, a st ep in t h e action pending

before t h e national court , t he decision on cost s is a mat t er for t hat court . Cost s incurred in

submit ting observat ions t o t h e C ourt , ot her t han t h e cost s of t hose part ies, are not recoverable.

On t hose grounds, t he C ourt (Grand C hamber) h ereby rules:

T h e no tio n o f ‘ fr eedom to pr ov ide ser v ic es’ in Ar tic le 4 1(1 ) o f th e Additional P r otoc ol signed in

Br ussels o n 2 3 Nov ember 1 9 7 0 and c onc luded, appr ov ed and c onfir med o n beh alf o f the

Co mmunity by Counc il Regulation (E E C) No 2 7 6 0 / 7 2 of 1 9 Dec ember 1 9 7 2 must be inter pr eted

as no t enc ompassing fr eedom for T ur kish nationals wh o ar e the r ec ipients of ser vic es to v isit a

Member State in or der to o btain serv ic es.

[Signatures]