On June 5, 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 European Court of Justice, or ECJ’s, Soysal ruling in February that declares the visa requirement for Turkish service providers is in breach of both community law and the EC-Turkey Partnership law.
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 Nov. 23, 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 a 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 permitted to rely on Article 41/1 before the 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 that 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 placed considerable pressure on the 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 requirements within the context of entrance conditions for Turkish nationals.
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. The German government, however, preferred to interpret the freedom in a narrow sense and introduced visa exemption only to Turkish service providers who belong to 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 could freely travel to Germany by providing a visa exemption document from German consulates.
Under the new decision, some specific professional groups are enlisted and two pre-conditions are required: 1) Those Turkish nationals should preserve their usual place of residence in Turkey. 2) 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 obtaining a visa to travel:
1) Those who are employed by a Turkish company established in Turkey and who travel to Germany with the aim to provide services for a temporary period: a) driver personnel and ship/plane crew members engaged in the international transportation of goods and passengers, b) maintenance workers.
2) Those who will travel with the aim to carry out activities of a commercial character: a) 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.) b) Those who will make a presentation that is of great scientific value or, c) 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.
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 of the regular visa system. Moreover, Turkish nationals are “kindly asked” to apply for a visa exemption document 10 days before they travel.
However, one must not forget that this non-legally binding document does not provide 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 the visa exemption regulation, “which introduces a more favorable treatment for Turkish nationals,” is only valid for travel to Germany. In other words, Turkish nationals cannot rely on the German regulation while traveling 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 over German visa requirements. Firstly, the nine states that had been admitted to the Community by Jan. 1, 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 EU countries that became members after Jan. 1, 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 a visa requirement for Turkish nationals on the date of their accession, then the application would continue.
Taking into consideration the main idea behind European integration – to create an Internal Market without borders – differentiation between member states regarding visa exemption for Turkish nationals probably will make implementation impossible. Since the Ankara Agreement envisages certain obligations for both the European Community and 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 the illegality of the visa requirement that Turkish nationals have been subjected 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 road map on visa liberalization that is in conformity with Turkish nationals’ granted legal rights. It is an undeniable fact that easy traveling conditions will increase mutual understanding between the parties and ease the full integration of Turkey into the EU.
(Ceren Mutuş is a researcher at the Center for European Studies International Strategic Research Organization, or USAK.)
Source: Hurriyet
URL: www.hurriyetdailynews.com/n.php?n=germanys-visa-exemption-a-test-of-the-eus-sincerity-2009-07-13
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