October 2, 2013
There was some hope that the 50th anniversary of the EU Turkey Association would coincide with a judgment of European Court of Justice favorable to Turkish citizens whishing to travel visa free to the EU. Alas, the contrary occurred when the Court in its long awaited Demirkan ruling marred the already gloomy ‘festivities’ marking the anniversary of Europe’s oldest association with a third country.
By Thomas Vandamme
In practical terms, the judgment confirms German legislation that obliges Turkish nationals to obtain a visa before traveling to Germany to receive services there. The rules of the EU-Turkey Association (in their current state) do not cover that situation and therefore do not protect Turkish citizens from such impediments, even if they are newly introduced (in fact, German legislation only started to impose such visa requirements on Turkish nationals after 1980).
The Demirkan ruling represents a rupture of a long strand of cases in which Turkish citizens have relied successfully before courts in the (older) EU Member States to claim rights they were entitled to under the EU-Turkey Association. Central to this jurisprudence are the so-called ‘standstill clauses’, which prohibit the introduction of new restrictions for Turkish citizens who wish to work, provide services or want to establish a business in the EU.
Several decades after these standstill clauses were adopted it became evident that they could be invoked against public authorities (they enjoyed direct effect) and ever since Turkish citizens have avidly used them to challenge all kinds of impediments they encountered, most importantly newly introduced visa requirements. That the standstill clauses could even be used to fight new visa requirements introduced by the EU itself became evident in the Soysal ruling where even EU Regulation 539/2001 proved contrary to the Association’s standstill clauses, a judgment upon which the EU legislator has, four years after the ruling, still not acted.
Against the background of stagnating negotiations on Turkish accession to the EU (commenced in 2005), the ECJ has proved to be very integrationist when dealing with the standstill clauses. It consistently held that those Turkish citizens who wished to provide a service in the EU could not be subjected to visa requirements if these did not exist at the time the standstill clauses entered into force between Turkey and the EU Member State that imposed such requirements. This line of argument was usually diametrically opposed to arguments of national Governments, whose interpretation of the legislation relied on methods of historic interpretation leading to outcomes that would be disadvantageous to Turkish workers, businessmen or service providers.
In a way the Court could be said to venture ‘Back to the Future’ as it went back to the days when the prospects of the future of EU-Turkey relations seemed bright and promising whereas Member State Governments longed to ‘Return to the Past (and stay there)’ pushing for a more historic reading of the Association rules. With Demirkan, these latter voices were finally heard as the judgment represents a clear break from the rulings of the Court so far.
The main historic argument the Court relies on is the ‘purely economic’ nature of the EU-Turkey association. Historically correct as this may be (in the 1960s and early 1970s the entire European project was mainly economic, therefore also the association between the, very young EEC, and Turkey), it denies the Association a dynamic quality that the Court was always happy to attribute to it in its earlier case law. Furthermore it downplays the economic nature of the activity itself; travelling abroad to receive a service is an important step when it comes to progressively furthering the economic ties between the EU and Turkey, one of the goals of the Association.
Was the switch of the Court in Demirkan unexpected? Not quite. Many predicted it by reference to the one other case where the Court also ‘turned historic’. That happened in the Court’s Ziebell ruling of 2011 (on the possibility for a EU Member State to expel a Turkish citizen after having committed severe crimes). There Advocate General Bot for the first time planted the ‘historic’ argument that the EU Turkey Association serves a ‘purely economic purpose’. Interestingly, that argument was uncalled for in that particular case. The lawyers of Mr Ziebell pleaded that their client should be treated by analogy to an EU Citizen (by applying the very strict protection from expulsion offered to EU citizens under Directive 2004/38). The Court disagreed and whilst it still ruled quite favorably for Mr Ziebell at the end, it did adopt the ‘purely economic’ argument of the Advocate General. However if the Court’s intention was to stress the legal difference between Turkish and EU citizens, it could have easily done so by other means than by reducing the Association to a ‘purely economic construct’. Uncalled for as this economic argument was in Ziebell, it thus reemerged for the second time in the Demirkan, this time with a very disadvantageous effect for the Turkish plaintiff.
Meanwhile in Turkey, politics and media kept a close eye on Demirkan. The day after the Demirkan ruling, Turkish Minster for EU affairs Egemen Bağiş stated that “It looks as if political considerations rather than legal ones were influential in the verdict”. Has the ECJ in Demirkan indeed caved in to rising political pressure? That is always a tricky notion to examine, let alone establish. Yet, if this were to be the case the route that led to the present ruling could scarcely have been planned better.
Dr. Thomas A.J.A. Vandamme is lecturer and researcher in European Law at the Amsterdam Centre for European Law and Governance. His personal page can be accessed here.
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