Sunday, 22 March 2009
In my comment dated 2 September 2007 about the European Court of Justice’s (ECJ) decision regarding Veli Tum and Mehmet Dari, I drew attention to the “standstill” principle and expressed that if this rule could be efficiently applied, many unlawful acts would be prevented. My expectations were the same for the declaration of the ECJ’s recent judgment, the Soysal ruling, on 19 February 2009. I welcome the Court’s confirmation of Turkish citizens’ rights originating from the EU-Turkey Partnership regime. Thus, I preferred to title this comment in the context of the “standstill” principle.
In the following paragraphs, we will first discuss the dispute in the main proceedings. Then, we will discuss the Court’s approach to the principle and probable consequences of the judgment. Last, we will focus on the future implications of the decision.
I- The dispute in the main proceedings
To be accurate, individual endeavors played the most important role of the success in this case, as well as in previous cases regarding the legal status of Turkish workers. According to the official records, the three appellants, named Mehmet Soysal, Ýbrahim Savatli, and Cengiz Salkim., worked as lorry drivers. It should be noted that they took legal action as a last resort, since they had nothing left to lose.
As mentioned above, these three Turkish lorry drivers were working for a Turkish company engaged in international transport between Turkey and Germany and were driving lorries registered in Germany. Until 2000, the appellants were subjected to the visa requirements issued by the Federal Republic of Germany. During 2001 and 2002, however, German authorities rejected the visa renewal (?) applications submitted by the appellants, and the appellants took action through the Berlin Administrative Court. Following the dismissal of their actions by the Administrative Court, the appellants filed an appeal in the Berlin Higher Administrative Court, which decided to refer the case to the ECJ for a preliminary ruling under Article 234 of the EC Treaty.
It should be noted that in these kinds of cases, appellants encounter several difficulties. For example, in the Meryem Demirel case, the ECJ’s first ruling regarding Turkish workers, British, German, and Dutch governments asserted that the Court had to dismiss the action from the procedure on the ground that the Ankara Agreement was a mixed agreement, thus was not an integral part of the Community law. This baseless argument was avoided by the Court in accordance with the appropriate opinion of the French Advocate General Marco Darmon.
Similar obstacles were encountered during the proceedings of the Soysal case. At the beginning of the proceedings, besides German Foreign Minister and German Labor Office, Denmark, Greece, Slovenia and the European Commission participated as intervening parties. These countries claimed that in case of the abolition of the visa requirement for Turkish citizens, drug smugglers and terrorists would be able to enter the EU freely.
On the other hand, the German government argued that the Schengen Agreement, which is applied among the 23 EU countries, plus Switzerland, Iceland and Norway and the visa requirement already has made procedures easier for Turkish citizens. Moreover, the Agent of the Commission delivered an opinion totally opposite to his previous ones and supported the continuation of the visa requirement for Turkish citizens. Actually, there is a striking detail about the Commission’s approach to the case. While it had adopted an opinion in favor of the appellants at the beginning of the proceedings, it changed this view on 2 September, 2008. At this point, it is noteworthy that this shift overlaps with the EU term presidency of France. The Commission’s attitude was also criticized by the ECJ judges, especially the President of the Chamber, who responded to the Agent with “Did you see the Holy Spirit in your dream last night and change your opinion?”
II- The ECJ’s Approach Towards the Issue
At the end of the process summarized above, the ECJ gave its ruling on 19 February, 2009. In its judgment, the Court ruled that Article 41(1) of the Additional Protocol signed between Turkey and the EU on 23 November, 1970 obliges EU member states to refrain from introducing further restrictions on the freedom of establishment and the freedom to provide services. On the other hand, the Court emphasized that since the Schengen visa requires additional charges and costs, it constitutes a new restriction.
This judgment differs from the previous Abatay-Sahin and Tum-Dari decisions, since for the first time the Court explicitly concludes that visas form a new restriction in the context of Article 41(1) and should be abolished.
However, we have to stress a point in the verdict that contravenes the logic of law. Since a visa was not required on the date of 1 January 1973, restrictions introduced afterwards conflict with the standstill rule. Yet, if a national legislation of a member state provides a visa requirement for Turkish citizens on the date of 1 January 1973, the requirement will continue.
Under normal circumstances, the date of 1 January 1973 should also take effect for the countries which later on became members of the EU since the Additional Protocol forms an integral part of the Acquis Communauitaire. However, the Court’s approach is the opposite. According to this, in order to figure out whether or not there is a visa requirement for Turkish citizens in a single member state, a retroactive search has to be conducted. The date on which new member states adhere to the Union determines the enforcement date of the Additional Protocol for those states. For example, while this date is 1986 for Spain, on the other hand, it is 2007 for Romania. In other words, the date of 1 January 1973 is not valid for the member states which were admitted to the Union later. It is important whether member states’ national legislations provided visa requirements on the date of their entrance to the EU. Consequently, Turkey faces a patchy structure regarding the visa application. In other words, the ECJ did not rule that this judgment is binding for all member states in all circumstances and the visa obligation is absolutely invalid.
III- Probable Consequences of the Judgment and the Way Ahead
First, we have to emphasize that this ruling does not mean that hereafter Turkish citizens will automatically be able to enter the EU countries without being subject to any requirements. Accordingly, Turkish citizens will continue to provide a visa in order to travel to European countries freely. Then, what is the exact point of this decision? Under Article 41(1) of the Additional Protocol dated 23 November 1970, a visa constitutes a new restriction for Turkish citizens who wish to travel to the EU countries to freely provide services and thus can not be required. The article states that “The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.” The judgment covers businessmen, lawyers, sportsmen, doctors, academicians, as well as people traveling to these countries as tourists, students or patients. At this point, it would be a very restricted approach to interpret the freedom to provide services in active meaning. Besides, freedom to provide services in a passive meaning (facilitating the service) should be considered in this context.
Another issue to be mentioned is that the ECJ does not have the coercive power to implement its judgments in member states contrary to their national legal systems. In other words, in order to effectuate the rulings of the ECJ, member states have to adopt necessary measures under the principle of respect for rule of law. However, this is not the case thus far. It is not possible to force the member states by saying that this is the judgment of ECJ. Conversely, at first the Turkish government should engage in diplomatic dialogue with the responsible states and the EU in general, take advantage of its political relations, and favor a softer style.
In case these efforts do not turn out satisfactorily, then legal means may come to the fore. Before all else, aggrieved parties may lodge complaints against member states which adopt a narrower approach in the EU Commission or the EU Parliament petition commission. It is not mandatory to be a citizen of EU member states to lodge complaint in the mentioned organs. In this way, member states’ acting in defiance of the law would be authenticated. Aggrieved parties may also bring action for damages or infringement before the national courts. The judgment of the ECJ may form the legal basis for the annulment of the visa requirement.
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