This article is mainly based on the story of two lorry drivers, their visa refusal by Germany, their reaction to these refusal and the results of this reaction. In this context, we will also see the difference between approaches of the EU to Turkey, which changed over time according to the union’s benefits.
In 1980 Germany introduced a visa requirement for all Turkish nationals seeking entry into Germany. However, until 2000 Germany easily issued visas, including Turkish lorry drivers moving goods between Turkey and Germany. However, 2001 and 2002 onwards it became increasingly difficult for these lorry drivers to renew their visas to continue their professional activities. Many were flatly refused new visas making it impossible for them to continue to work on the Turkey-Germany routes. Two Turkish lorry drivers, Mr. Soysal and Mr. Savatlı were refused visas to drive to Germany. They appealed against the refusal to the administrative court in Berlin on the basis that under the Agreement it was unlawful for Germany to require them to obtain visas to travel to Germany at all, at least in their capacity as lorry drivers.
The aim of this study is to describe the legal implications of the Soysal judgment, the implementation and the impact of the judgment in Member States, the follow-up of the judgment in the EU institutions and to reflect on possible implications of the judgment for the EU visa policy towards Turkey.
As we know, Turkey has been waiting to be accepted into the European Union for a long time. This waiting is continuing since 1960s. After four years of negotiations, on 12 September 1963 the European Economic Community and its six original Member States in Ankara signed the Association Agreement with Turkey. A year before the EEC had signed its first association agreement with Greece. The EEC Member States wanted to avoid difference in treatment between the two Mediterranean countries that both were members of NATO. In 1961 the wall in Berlin had been built, effectively stopping the constant flow of workers from Eastern Europe to West Germany. Thus that Member State had to look for foreign workers elsewhere. At the time, Turkey played an important role in the defense of South Eastern Europe against the threat from the Soviet Union.
However, Greece is the member of the European Union now, despite its economic weakness. And this clearly show us the fact The EEC Member States or The EU couldn’t avoid difference in treatment against the two neigbour countries. All in all, Turkey is still out of the union, and still waiting for full membership of the EU.
As for our subject here,the question is whether a visa requirement is in fact an additional obstacle to a Turkish service provider seeking to go to exercise services in Germany. The German authorities were concerned, however, that the visa requirement for Turkish service providers was a requirement of the EU law as Turkey is on the black list of the EU’s Visa Regulation 539/2001. The ECJ had no difficulty with this argument – it merely confirmed its constant jurisprudence that international agreements of the EU take priority over secondary Community legislation. Thus the Protocol must be applied and the Visa Regulation disapplied as regards Turkish service providers.
Turkey’s two international agreements with the EU should have priority. In 1963 the EC and Turkey signed the Agreement which aimed to promote the continuous and balanced strengthening of the trade and economic relations between them. This includes progressively securing the free movement of workers; the abolition of restrictions on freedom of establishment and the abolition of the freedom to provide services (Article 14). For the purposes of the judgment Article 14 is particularly important as it 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.”
Another Protocol is the one which entered into force on 1 January 1973 which included at Article 41(1) that ‘the contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.’
However, across Europe, from 1973 onwards, Member State after Member State has introduced new restrictions on access to their territory for Turkish nationals in the forms of visa requirements. Most of the states have introduced complicated and time consuming rules on getting visas, increased amounts of money which individual must have to get visas etc. since the entry into force of the Agreement. The problem of the Turkish lorry drivers is not an isolated one, it affects all Turkish nationals coming to EU Member States
Here it will be beneficial to quote Minister of Foreign Affairs Davutoğlu’s view in which he raised the issue of the EU visa policy regarding Turkey. With reference to the Soysal judgment, he affirmed that visas for Turkish service providers should be removed as they constitute a new restriction to the right of establishment and freedom to provide services. He stated that the Court had affirmed the primacy of international agreements concluded by the Community over the provisions of secondary Community legislation, like the Council Regulation which sets out the visa black and white lists of the EU. Moreover, he stated that Turkey expects the European Commission to take the necessary measures in respect of any EU Member State that does not comply with the Agreement and the Additional Protocol.
Since the protocols are reciprocal, Turkey also is obliged not to introduce new restrictions on the provision and receipt of services by the EU nationals. If on the date the Protocol entered into force for a Member State, Turkey did not require the nationals of that Member State to have a visa, Turkey may not require a visa for nationals of that Member State coming to provide or receive services. This will apply with regard to nationals of EU Member States with which Turkey had concluded a bilateral visa agreement (Turkey had concluded bilateral visa agreements with Belgium in 1956, France in 1954, Germany in 1953, Ireland in 1955, the Netherlands in 1953 and the UK in 1960. All six agreements were in force in 1973) or that, like Turkey, was party to the 1957 Council of Europe agreement on the date the Protocol entered into force for that Member State.
Turkey provides visa free travel to nationals of six of the twelve Member States that acceded to the EU in 2004 and 2007. The nationals of five other Member States can obtain a multiple-entry visa at the Turkish border for 15 Euros or for free (Malta). These facilities do not apply for the nationals of Cyprus. With regard to nationals of eleven Member States, the visa policy of Turkey is far more liberal than the visa policy of the EU towards Turkish citizens. Nationals of the three other candidate countries Croatia, the Former Yugoslav Republic of Macedonia (FYRM) and Iceland do not need a visa for a short stay in an EU Member State: Croatia and FRYM are on the visa white list and Iceland is member of the Schengen group. In December 2009 the Council decided to abolish the visa obligation for three neighboring states of the EU. FYRM, Montenegro and Serbia were transferred from the black to the white list of the EU Visa Regulation.57 Negotiations on accession to the EU are under way only with FYRM. The Turkish Minister of Foreign Affairs Davutoğlu called it ‘unacceptable that certain Balkan countries that are in the initial stages of the membership process and have not begun negotiation have been given the Schengen privilege (visa-free travel within the Schengen Area), while Turkey, considering the level that Turkish-EU relations have reached, has not.
The obligation to acquire a visa for a short trip to EU Member States has been an important problem for Turkish citizens ever since 1980. This problem confronts all strata of Turkish society, the business community, the academic world, students, journalists and the large class of the Turkish population that has close family members among the almost 3 million Turkish nationals living in the EU. The studies reveal complaints about the costs and the time consuming and bureaucratic process. The visa process is perceived by many applicants as a violation of their human rights and by businessmen as unfair competition considering the Customs Union between Turkey and the EU. The practice of German consulates to require prepayment for an appointment was subject of outspoken criticism.
Clearly, Turkey is being treated quite differently regarding visas from other countries, despite its continuous land borders with the EU and specifically with the other countries in the Balkan region. This is notwithstanding the fact that Turkey is the country with the longest standing candidature to the EU.