Professor: Visas for Turkish citizens ‘against spirit of EU integration’

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A recent European Court of Justice ruling has increased the chances of speeding up the abolition of visa requirements for Turkish citizens visiting the EU, the president of Turkey’s Economic Development Foundation (IKV), Professor Haluk Kabaalioglu, told EURACTIV Turkey in an interview.

Professor Kabaalioglu is dean of the Faculty of Law at Yeditepe University in Turkey. He has also worked as a high-ranking diplomat in the Turkish Mission to the EU, from 1988 to 2002.

To read a shortened version of this interview, please click here

What are the most pressing problems faced by Turks in obtaining visas to travel to the European Union?

According to Council Regulation No. 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the [EU’s] external borders, Turkish nationals require a visa to travel to the EU. And Turkish nationals encounter cumbersome procedures and grave problems in order to obtain Schengen visas.

Just to point out a few: a long list of necessary documents that need to be submitted to the consulate or the intermediary agent, including a letter of invitation, birth certificate, land registry; lengthy periods of waiting only to discover a visa with a short duration of stay and mistreatment in the consulates.

The widespread belief among the Turkish public at large is that vis-à-vis a country which has an association agreement dating back to 1963, which has been part of the Customs Union since 1995 and has been negotiating its accession since 2005, there is discrimination and unjust treatment with respect to the visa issue.

Which segments or groups of society are most adversely influenced by the visa problem?

Although the public at large and various professional groups are affected negatively by the visa application, the Turkish business community is perhaps the first and foremost group which experiences the negative impact most directly. While goods circulate freely thanks to the Customs Union, the businesspeople who produce and trade these goods need to overcome the visa barrier. This creates unfair competition. In addition to that, their counterparts in Europe are either exempt from the visa requirement, or they are able to acquire visas in a very short period for very little money, which again puts Turkish businessmen in a starkly disadvantaged position. It becomes extremely difficult for them to conduct their regular business relations, let alone initiate new business deals.

As such, this leads to unfair competition by erecting a non-technical barrier to trade. What is worse, Turkish businessmen have to present their bank accounts and receive letters of invitation from their European partners in order to obtain visas. Such being the case, how can we talk of commercial confidentiality and arms-length bargaining, not to mention operating on a level playing field!

The majority of the Turkish population is wary of both the visa application process and the procedural shortcomings, ranging from the attitude of officials to the numerous documents required and the additional costs.

The most common complaints expressed by Turkish people from different walks of life are the following: persons who miss meetings, conferences, tenders or job appointments due to delays in visa procedures or ultimate rejections; Erasmus students who lose their right to scholarships because they are unable to start their courses on time due to delays; researchers who cannot travel for visa-related problems; academics and doctors who are unable to attend international conferences or seminars on time, if they are able to attend at all. 

People face major difficulties and encounter material and psychological losses, for not being able to take part in tenders/seminars they have been invited to, or some even have to give up scholarships just because their visas are not issued on time or their application is rejected without any prior notice or right to appeal. In this scope, people have to renounce their acquired rights, be it academic or business.

What is the legal situation in Turkey governing visa issues?

First of all, as I mentioned before, the visa requirement is clearly in breach of the principle of free movement of goods, which constitutes the basis of the Customs Union established by Association Council Decision 1/95 and also Article 41 of the Additional Protocol [signed by the EU and Turkey in 1970]. This was reconfirmed in the recent Soysal ruling of the European Court of Justice of 19 February 2009 [concerning two Turkish citizens, Mehmet Soysal and Ibrahim Savatl, who worked as drivers for a Turkish company, driving lorries owned by a German company. The ECJ ruled that a visa was not required for Turkish citizens on the date of entry into force of the Additional Protocol in 1973, Article 41(1) of the Additional Protocol being interpreted as meaning that Turkish citizens do not have to obtain a visa in order to provide services in a member state on behalf of an undertaking established in Turkey.] 

In other words, in accordance with the Article 41 Paragraph 1 of the Additional Protocol, the standstill clause, member states shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services. 

Also, in the Soysal ruling – different from previous case law such as Abatay-?ahin or Tüm and Dari – it was expressly stated that a visa requirement as such constitutes a new restriction and if the member state in question did not require such a visa at the time of the entry into force of the Additional Protocol of 23 November 1970, then Turkish nationals travelling to that member state do not require a visa.

The Soysal case, which was awaited with great interest, had different repercussions for Turkish public opinion. Therefore, I feel obliged to underline a few points, which I find critical in order to interpret the judgement in a sound manner. Firstly, the persons covered by this decision are Turkish citizens, who fall into the scope of Additional Protocol 41/1. Notably businessmen, lawyers, sportspeople, doctors and academics, as well as Turkish citizens who wish to travel to EU countries for touristic, study-related or medical purposes, are covered in this regard. Hence, views expressed by some experts and academics from Turkey and EU member states, most particularly Germany, which argued that Soysal decision only concerns lorry drivers and/or service providers, do not completely reflect the reality.

Secondly, it needs to be borne in mind that the reference date for each member state is the time of the entry into force with regard to that member state of the Additional Protocol. For instance, for Germany in the Soysal case, this date is 1 January 1973, for Spain 1986 and for Romania 2007, in other words the accession date to the Union.

Lastly, due to the sui generis nature of the EU legal system, unlike national laws there is no mechanism whereby decisions of the European Court of Justice can have direct effect. Thus, for the Soysal ruling to be implemented, member states – in line with the rule of law – have to take necessary measures to ensure the enforcement of this decision. However, to this day, member states have been reluctant to adopt such measures. Therefore, I need to emphasise that the Soysal ruling, as some argue vehemently, does not imply a visa-free Europe for Turkish businessmen starting from tomorrow.

What initiatives have been taken on this matter until now?

At the Economic Development Foundation, we are doing our best to keep this subject alive and to raise it at every platform available to us. We express our views in exchanges with European commissioners and MEPs, as well as at international meetings and civil society dialogue meetings. 

For instance, in a meeting I attended last week in Lausanne, I mentioned this issue to Mr. Jacques Barrot, vice-president of the Commission. He, in fact, acknowledged that visas are an unnecessary barrier for Erasmus students. However, the rhetoric needs to be backed up by concrete steps. In this regard, much needs to be done by the government, the Secretariat-General for EU Affairs and the Ministry of Foreign Affairs. 

We are ready to offer them all our support. Also, in May we organised a meeting in Belgium targeting lawyers and practitioners residing in Belgium, where a prominent group of experts including Dr. Rolf Gutmann (Soysal case) and lawyer Murat Ugur Aksoy informed participants about the visa issue, free movement and the rights of Turkish citizens. We will organise a similar meeting in Amsterdam in December. It is very important to train legal persons and provide support to Turkish citizens in their legal struggle. I believe that we should trust in laws rather than rely on politics when it comes to visa issues.

Has there been any progress so far? What are the present bottlenecks?

Despite the Soysal ruling, unfortunately there is as yet no satisfactory progress. In this framework, there are two major grey areas. One of them is whether ‘freedom to provide services’ covers service recipients and the other one is which EU member states are encompassed. In the note from the Commission, which was delivered to guide member states, it is stipulated that visas should be lifted in Germany for certain categories and in Denmark for all service providers. 

When we raised this issue in our meetings with Commission officials, we were told that only Germany and Denmark communicated information to the Commission saying they did not apply visas to Turkish citizens in 1973, whereas the rest argued that they applied visas to Turkish citizens on this date. When we informed the Commission officials that most of the countries started to apply visas for Turkish citizens after the 1980s, they implied that their hands were tied behind their backs and they had no option but to trust the replies coming from the member states.

When we look at the aftermath of the Soysal case, we notice a procedural change in Germany’s administrative practices. Guided by this change, only certain categories of persons (artists, sportspeople, scientists along with personnel responsible for cross-border transportation, etc.) can enter Germany visa-free, yet their stay should not exceed two months. This application inspired by the Soysal ruling is very restrictive in scope, since those people who benefit from visa exemptions are confined to service providers, and furthermore only specific categories of service providers within this group are covered. Although this practice is in violation of ECJ case law, we can easily argue that the intention is pretty straightforward: Germany aims to narrow down the scope of the visa exemption as much as possible.

Reaping tangible benefits from the Soysal ruling depends to a large degree on member states’ application. Although this decision by the ECJ reaffirms our rights and justifies our position vis-à-vis EU member states, it is not realistic to expect to resolve the visa issues overnight. Having said this, we should aim for long-term solutions.

What needs to be done as a first step is to ensure that all member states implement the Soysal decision in a uniform manner to all Turkish citizens who find themselves in a similar situation. And the way to achieve that goes through using diplomatic channels, political communication and persuasion effectively. At this point, major responsibility falls on the European Commission. The Commission as guardian of the EU treaties should closely monitor and oversee the correct implementation of the EU acquis. On the other hand, although the Soysal decision has ruled visa requirements for Turkish citizens as unlawful, the mere fact that each country had different practices at the time of accession to the EU complicates the picture and makes enforcement harder. Therefore, the visa issue should be addressed at high-level meetings and Turkish authorities guided by the Commission should seek to find a solution which is acceptable to both sides, namely the member states and Turkey.

Also, I need to stress that whether or not the Soysal ruling will bring tangible benefits on the ground relies heavily on the stance taken by the individual EU countries. If the member states do not take the appropriate steps, Turkish citizens who are adversely affected by the visa problem can apply to national courts in their respective member states and strive for compensation for their damages.

In this scope, to lend our support in this judicial process, IKV established a ‘visa help desk’ in cooperation with TOBB (Union of Chambers and Commodity Exchanges of Turkey). In order to contribute to the legal struggle of Turkish citizens, we organised several meetings in Istanbul and Ankara with the participation of leading experts in this field. Also, as IKV, we published five comprehensive reports, which cover the current developments on the visa problem and were disseminated to all stakeholders. 

Also, on 29 May, we realised a large-scale meeting in cooperation with TOBB and European Association of Turkish Lawyers, which brought together more than 100 Turkish lawyers registered in bars from various EU countries such as Belgium, the Netherlands, Germany, Austria and France. We are now preparing for the second meeting, which will take place in Amsterdam.

Which authorities from Turkey should deal more with this problem?

We are aware that there are experts within the Turkish foreign ministry who are deeply engaged and working hard on this issue. However, current efforts need to be intensified and coordinated by the government and the chief negotiator. In our meetings with the European Commission, the issue of visa facilitation is brought up as a way to improve the current situation in return for signing a readmission agreement with the Community.

As noted in the last Progress Report, Turkey has resumed negotiations for a readmission agreement. However, the signature of a readmission agreement, which envisages to return all illegal Turkish migrants residing in the EU and all those irregular migrants who have transited through Turkey, is likely to bring a significant financial and administrative burden onto Turkey. Therefore, this matter should be treated cautiously and wisely and negotiated according to a timetable in line with the full EU membership perspective.

Another point to consider carefully is that we have rights stemming from the Association Agreement and its Additional Protocol, which has primacy over the Visa Regulation of 2001. In this view, signing a visa facilitation agreement with the Community would signal a step backward from the acquired rights for Turkish nationals.

Do IKV and the Union of Chambers and Commodity Exchanges of Turkey (TOBB) plan to start other initiatives?

Fully aware of their responsibilities, TOBB and IKV have decided to take a step forward and to initiate a project entitled ‘Visa Hotline Project’, which aims to collect realistic, strong and coherent reasoning as to why visa requirement is unacceptable. In cooperation with ECAS [the European Citizens’ Action Service], a Brussels-based NGO renowned for its studies and expertise in the realm of free movement of persons, we will launch a hotline and a web address in November, through which we aim to cumulate all the problems encountered by Turkish people in obtaining visas. 

[We will] analyse and categorise them in a systematic manner, which will then be made into a final report and submitted to prominent officials and policymakers at EU level. We firmly believe that this study will fill a lacuna in this field and set a precedent.

Are there any EU countries which adopt a more positive stance?

Following the Soysal ruling, when the Commission asked member states whether or not they applied visas to Turkish citizens at the time the Additional Protocol entered into force, Germany and Denmark were the only two states among the 27 to respond to this enquiry. The rest were unwilling to cooperate, since they did not want to bind themselves in anyway. 

Apart from this, The Netherlands has started a practice named the ‘orange carpet’ with a view to easing visa procedures for businessmen and facilitating trade between Turkey and The Netherlands. Nevertheless, these are limited attempts, which have little effect on the outcome.

What can you suggest further?

IKV will continue to carry out its activities and to provide support for the ongoing legal struggle on one hand and increase its efforts to overcome the political resistance shown by member states on the other. With our pioneering project entitled ‘Visa Hotline Project’, we will continue to raise awareness and prompt policymakers to make changes for the way forward. You can follow our activities more closely on our website.

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