Leyla Ecem Demirkan judgment: Fading hopes for 'visa-free Europe'.
In this context, the roadmap adopted for the liberalisation of visas for Turkish nationals lists the requirements to be fulfilled by Turkey. These include, inter alia, fully and effectively implementing the readmission obligations, reforming the border management and visa policy to prevent irregular migration, increasing the security of travel documents, aligning the migration and asylum system with international standards and procedures, establishing administrative structures to combat organised crime, smuggling and trafficking in human beings, improving the judicial co-operation in criminal matters with the EU Member States and protecting the fundamental rights of citizens and third country nationals with specific focus on vulnerable groups. The roadmap does not set a specific timetable and the process of realizing a visa-free travel regime is closely linked to the progress made by Turkey in addressing the above-mentioned requirements.
The signing of the readmission agreement came at a time when EU-Turkey relations had been strained due to political turmoil in Turkey following the widespread anti-government protests last summer. However, the situation in the Middle East, particularly the worsening circumstances of the Syrian Civil War and its adverse impacts not only on the close region but also on Europe, had brought forth the need for both parties to cooperate on issues of justice and home affairs. A new chapter in accession talks (Chapter 22: regional policy & coordination of structural investments) was opened after a three-year impasse and was presented as a critical step in restoring relations.
Another important development that pushed Turkey to sign the readmission agreement was the European Court of Justice's (CJEU) Leyla Ecem Demirkan judgment delivered on the 24th of September, 2013. This critical decision concerned the question of whether or not the standstill clause enshrined in Article 41(1) of the Additional Protocol of 23 November 1970 could be interpreted as entitling Turkish nationals who are recipients of services to visit Germany (and accordingly, to other Schengen countries) without a visa. The Court answered in the negative. This unfortunate and legally debatable decision apparently damaged Turkey's long-standing legal and political efforts towards a 'Visa-free Europe'. The judgment was not only limited to the visa issue but also incorporated conclusions that have undermined the very foundations of the Turkey-EU Association Law.
The Background of the Case
In 2007, Leyla Ecem Demirkan, a 14 year old Turkish national, applied for a Schengen Visa at the German Embassy in Ankara in order to visit her family who were living in Germany at that time. However, her application was rejected as the German authorities suspected that she would immigrate to Germany for work purposes. Against this decision, she brought an action before the Berlin Administrative Court. She asked the Administrative Court to declare that under the Turkey-EU Association Law, she was entitled to travel to Germany without a visa. Referring to the famous 'standstill clause' in Article 41(1) of the Additional Protocol, which says that "The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services", Demirkan argued that as such a family visit would necessarily entail the decisive element-the receipt of services-she should have been exempted from the visa requirement since it would otherwise constitute a new restriction within the meaning of the provision. At the date of entry into force of the Protocol as regards Germany, Turkish nationals were not required to obtain a visa for a stay the purpose of which was a family visit. Thus, the visa requirement introduced by Germany for Turkish nationals after 1980, was in clear contradiction with the Association Law.
By judgment of 22 October 2009, the Administrative Court dismissed Demirkan's application, declaring that the standstill clause could not be considered applicable for family visits and did not confer Turkish nationals a general right to freedom of movement which is independent of economic activity. Demirkan appealed against this decision before the Higher Administrative Court where it initiated the preliminary ruling procedure, asking the CJEU whether the 'passive freedom to provide services falls within the scope of the concept of freedom to provide services within the meaning of Article 41(1) of the Additional Protocol' The CJEU's answer to this question was of great importance as the Court would for the first time comment on the visa requirement for Turkish service recipients such as tourists, patients, students, etc. in their visits to EU countries.
In his legal opinion presented in April 2013, the Advocate General Cruz Villalon suggested that the CJEU should answer 'no' to this question. Pointing to the situation under EU law, the Advocate General argued that the passive freedom to provide services was specifically designed for EU citizens and it was one of the most important advantages of the concept of "EU citizenship". Even though under EU rules and in the established case-law (Joined Cases 286/82 and 26/83 Luisi and Carbone) the service recipients are entitled to 'passive' freedom to provide services, namely the freedom for recipients of services to travel to another Member State to receive a service there without being subjected to any restrictions, Villalon contented that it would undermine the goals of EU treaties if the same logic would be applied to the Turkey-EU Association Law. He asserted that while the EU treaties underpinned by the notion of 'EU citizenship' aimed at creating an Internal Market in which goods, people, capital and services could freely circulate, the Ankara Agreement and its Additional Protocol between the EU and Turkey originally aimed at strengthening the economic relations between parties and improving the Turkish people's standard of living.
The Court's Decision
In September 2013, the EU's highest judicial body, the CJEU, which had played a critical role in the development of the Turkey-EU Association Law since the 1990s, delivered a disappointing and controversial judgment on the Demirkan case. By adopting a restrictive approach similar to that of the Advocate General Villalon, the Court distinguished between the EU's founding treaties on the one hand, and the Ankara Agreement/Additional Protocol on the other, in terms of their objectives. Putting aside its previous case-law shedding light on the purpose of the Association, the Court maintains that the EU-Turkey Association pursued 'a solely economic purpose and the Ankara Agreement and its Additional Protocol were intended essentially to promote the economic development of Turkey'. According to the Court, the wording of Article 14 of the Ankara Agreement, which envisaged the establishment of freedom to provide services between Turkey and the EU, was intentionally chosen as "to be guided by the relevant provisions of EU law", meaning that those EU provisions were to be considered only as "a source of guidance". The interpretation given to the EU law concerning the internal market could not be automatically applied to the Association Law.
In those circumstances, the Court concluded that the notion of 'freedom to provide services' in the Article 41(1) of the Additional Protocol could not be interpreted as entitling Turkish service recipients to travel to Member States without a visa.
In contrast to the ground-breaking Soysal and Savatli judgment of 2009, in which the CJEU had found that the introduction of a visa requirement for Turkish service providers (active service provision) constituted a new restriction within the meaning of the Article 41(1) and thus ought to be abolished, a long-awaited Demirkan judgment exhausted all hopes for Turkish service recipients who want to travel to Europe without obtaining a visa. Moreover, it cast doubt on the credibility and independence of the CJEU. The Court couldn't resist the pressure imposed by EU Member States and the European Commission, it jeopardised the vested rights of Turkish nationals and linked these rights to faith in the readmission agreement between Turkey and the EU which is expected to have adverse political, economic and social impacts on Turkey. The agreement carries the risk of transforming Turkey into a 'buffer-zone' for rejected migrants and protection seekers, imposing a heavy burden on the country's asylum system and endangering the safety of vulnerable groups in the absence of sufficient legal and practical safeguards. Furthermore, the current prospect of 'Visa-free Europe' is not binding on the EU. Instead, it is open-ended and depends on Turkey's progress. It is envisaged only for short touristic stays of up to three months and excludes other visits for education and health purposes. In light of these deliberations, it is time for the Turkish decision-makers to act responsibly. The long-term implications of a possible readmission agreement should be assessed carefully.
*The Turkish version of this article was first published in the November 2013 issue of USAK's monthly journal, 'Analist'.
Ceren MUTUS TOPRAKSEVEN (*)
(*) Senior Researcher at USAK.
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|Author:||Mutus Toprakseven, Ceren|
|Publication:||USAK Yearbook of Politics and International Relations|
|Date:||Jan 1, 2013|
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