On the 5^th of June 2009 the German Embassy in Ankara released a press statement announcing that it had undertaken an administrative change that would ease the visa procedure applied to Turkish nationals and widen the scope of Turkish nationals who would be able to enter Germany by “simply” providing a visa exemption document. Since then, the discourse has been based on the compatibility of the new German regulation with the ECJ’s Soysal ruling in February that declares the visa requirement for Turkish service providers is in breach of both Community law and EC-Turkey Partnership law.

In order to make an efficient assessment of the recent decision of German authorities and accordingly the sincerity of Germany in particular and the EU in general, first of all the Soysal ruling of the ECJ has to be put under examination. Throughout this comment, I will try to point out the most striking points of the ruling that strengthen the hand of Turkish nationals in terms of their legal rights derived from EC-Turkey partnership regime. Secondly, I will try to explain the new German regulation that is leading to many concerns in both political and academic circles. Lastly, I will put forward my main critiques regarding the new regulation.

Since the 1990s, the ECJ has played a key role in improving EC-Turkey Partnership law through determining the legal nature of the Ankara Agreement (1963), Additional Protocol (1970), Associate Council Decisions (No 2/76, 1/80, 3/80) and the legal status of Turkish nationals in Europe. Following the failure of the Associate Council to introduce a concrete timetable for abolishing restrictions on freedom of establishment and to provide services between contracting parties, the ECJ began to look at individual cases brought by Turkish nationals who have claimed that EU countries’ foreigners laws are in breach of Turkey-EU Partnership Law and hinder them from efficiently establishing themselves in EU countries or providing services. At that point, Article 41/1 of the Additional Protocol, which was signed on 23 November 1970, constituted the main legal basis of the applications. According to Article 41/1, “The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.” The European Court of Justice confirmed for the first time in its Savas ruling that this provision has direct effect since it provides clearly, precisely and unconditionally an unequivocal standstill clause that envisages certain obligations on contracting parties not to act. Thus, Turkish nationals were granted to rely on Article 41/1 before national courts of EU member states. However, the Court stated that Article 41/1 is not in itself capable of conferring on Turkish nationals a right to enter EU countries and reside there unlawfully. This provision only envisages a general prohibition for contracting parties not to introduce any new stricter conditions than those which are applied to citizens of the parties at the time when the Additional Protocol entered into force.

Turkish nationals’ long-lasting legal struggle for visa exemption finally yielded results in the ECJ’s Soysal ruling and the ensuing diplomatic openings put a considerable pressure on German government to introduce a “more favorable treatment” for Turkish nationals. Before examining the new German regulation in detail, it is important to put forward the most striking points of the Soysal ruling. In the main proceedings, the ECJ examined for the first time the legality of visa requirement within the context of entrance conditions for Turkish nationals. The Court, referring to its established case law, once more confirmed the direct effect of Article 41/1 of the Additional Protocol which envisages a general prohibition for contracting parties not to introduce any new stricter conditions than those which are applied to citizens of the parties at the time when the Additional Protocol entered into force.

Although the ECJ didn’t clarify the scope of the “freedom to provide services”, it should be interpreted widely and in line with the Community law and the ECJ’s well-established jurisprudence. In other words, the Court’s decision should include both “freedom to provide services” and “freedom to receive services”. Moreover, Article 14 of the Ankara Agreement states “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.”

In this context, besides Turkish service providers, Turkish service receivers such as students, patients and tourists must benefit from this right. However, as will be emphasized in the forthcoming paragraphs, the German government preferred to interpret the freedom in a narrow sense and introduced visa exemption only to Turkish service providers who even belong to some specific professional groups.

The ECJ’s interpretation on the legality of the visa requirement paved the way for the adoption of the new German visa regulation. Last month, the German Embassy in Ankara announced that hereafter Turkish service providers who belong to the enlisted professional groups in the decision would freely travel to Germany by providing a visa exemption document from the German consulates. However, it has to be noted that the regulation introduces a different visa procedure under the name of “visa exemption” instead of a new system that guarantees the legal gains of Turkish nationals. 

Under the new decision, some specific professional groups are enlisted and two pre-conditions are required: i) those Turkish nationals should preserve their usual place of residence in Turkey, ii) and the maximum duration of stay in Germany with the aim to provide services should not exceed two months. In this context, Turkish nationals who belong to the professional groups specified below are exempt from visa for their travels:

1)    Those who are employed by a Turkish company established in Turkey and travel to Germany with the aim to provide services for a temporary period: i) driver personnel and ship/plane crew members engaged in international transport of goods and passengers, ii) or maintenance workers.   

2)    Those who will travel with the aim to carry out activities of a commercial character;

i)     Those who will make a presentation or performance that is of great artistic value (internationally recognized artists or groups of artists whose performances are distinguished from their counterparts.)

ii)   Those who will make a presentation that is of great scientific value or,

iii)  Those professional sportsmen who predominantly earn their living from this profession.

As is seen, the right to enter Germany without being subject to visa requirement is only granted to a very limited group of people. Contrary to the ECJ’s well-established jurisprudence, the freedom to provide services is interpreted in a narrow sense and does not include service receivers. Another noteworthy point is that the new regulation prescribes a condition requiring the commercial activity to have a “special” value. However, the regulation does not mention a competent authority that will evaluate this very subjective condition. According to my opinion, the main goal is to ensure the implementation of the visa exemption is as limited as possible, which is definitely in violation of EC-Turkey Partnership Law.

 Another critique that can be directed to the German regulation is that it requires a bunch of official documents to obtain a visa exemption document and this method inevitably reminds one of an ordinary visa system. Especially, requested documents revealing the type and amount of the remuneration raise question marks over the sincerity of the new regulation. Moreover, Turkish nationals are “kindly asked” to apply for visa exemption document 10 days before they travel, which is probably going to lead to difficulties in future implementation. 

However, one must not forget that this non-legally binding document does not provide an absolute protection for Turkish service providers since German border authorities reserve the right to reconsider whether those Turkish nationals meet the exemption criteria. This option strengthens the arbitrariness of the future implementation. Lastly, the German government states that visa exemption regulation is only valid for travels to Germany. In other words, Turkish nationals cannot rely on the German regulation while travelling to the other Schengen countries. However, this approach constitutes an apparent violation of the ECJ’s Soysal ruling since the Court’s decision is not only binding on German visa requirements. Firstly, the nine states which had been admitted to the Community by 1 January 1973 (the date on which the Additional Protocol entered into force) did not have a visa requirement for Turkish nationals at that time and consequently the standstill clause embedded in Article 41/1 became binding for those countries. However, there are contradicting views regarding the situation of the EU countries that became members after 1 January 1973. According to the dominant view, the standstill clause goes into effect for those countries on the date of their accession to the EC/EU. Accordingly, if those countries had had a visa requirement for Turkish nationals on their accession date, that application would continue.

Taking into consideration the main idea behind the European integration- to create an Internal Market without borders- differentiation between member states regarding visa exemption for Turkish nationals probably will make the implementation impossible. Yet, this complexity should not abandon the responsibility of member states to act in accordance with their loyalty obligation embedded in Article 10 of the EC Treaty. Accordingly, they should undertake the necessary amendments in their national laws. Since the Ankara Agreement envisages certain obligations for both the European Community and the member states, the EU Commission should also act in accordance with its responsibilities through introducing a comprehensive and just solution to this long-lasting problem. The Commission firstly has to adopt a common stance in line with the ECJ’s ruling and prepare a draft proposal that includes the necessary amendments in Council Regulation no 539/2001 on Schengen Visa.

To sum up, the ECJ’s Soysal ruling constitutes one of the milestone decisions in terms of its consequences, especially the confirmation of illegality of visa requirement that Turkish nationals have been subject to for a very long time. Hereafter, the legal process has to be accompanied by a political dialogue respecting the equality of the parties. A comprehensive solution taking into consideration the concerns and rights of both parties must be the main goal. Turkey, as a negotiating country with the European Union, should be treated on an equal footing with member states already admitted to the Union and have gone through the same EU process. As in the case of Bulgaria and Romania, Turkey should be presented a roadmap on visa liberalization that is in conformity with Turkish nationals’ granted legal rights. It is an undeniable fact that easy travelling conditions will increase mutual understanding between parties and ease full integration of Turkey into the European Union. 

Note: This article was firstly published in Hurriyet Daily News on 21 July 2009.

Ceren Mutuþ

USAK EU Studies Center