IKV PRESS RELEASE ON THE ECJ DECISION ON THE DEMIRKAN CASE: A LEGAL JUDGMENT WITH POLITICAL SHADES

On the 24th September 2013, the European Court of Justice delivered its judgement on the case regarding Leyla Ecem Demirkan whose request for visa was turned down by the German consulate in Ankara. At the time she requested the visa, Leyla Ecem Demirkan was 14 years old and she wanted to go to Germany to visit her family. The court rejected Demirkan’s application and came to the conclusion that Turkish citizens do not have the right to travel in EU Member States without a visa of maximum 3 months duration for tourist purpose.

The visa obligation applied by EU Member States towards Turkish citizens constituted an important agenda in Turkey-EU relationships during these last years. Previously, on the Soysal Case which was ruled in February 2009, it was ruled that according to Article 41 of the Additional Protocol, truck drivers travelling to Germany to provide service did not require visa. However, it was not clearly stated in this decision whether the term of “providing service” was only applied to those who provides service or whether it also applied to the service area.

In order to visit her family in Germany, Leyla Ecem Demirkan applied for a visa in Ankara but her application was rejected because it was suspected that she would immigrate to Germany. As a result, Demirkan sued Germany with Prof. Rolf Gutmann as her attorney before the Berlin Administrative Court. Berlin Administrative Court ruled on the 22nd October 2009 that there were no visa exemption for Turkish citizens and therefore ruled against Demirkan. Following this decision, Demirkan, brought the case on appeal to Berlin High Administrative Court of Brandenburg. Taking into consideration the Soysal Case which allowed visa exemption to Turkish citizens for active service and other decisions rules by various states of Germany which ruled that visa obligation towards Turkish citizens was illegal, the Court sent the case to the European Court of Justice.

The case started to be investigated on November 2012, and the first important step was attained in April 2013. The advocate general of the European Court of Justice, Cruz Villallón delivered a negative statement related to the case by declaring that Turkish citizens could not enter EU Member States to receive services.
 

On the 24th September 2013, the European Court of Justice ruled against Leyla Ecem Demirkan regarding her claim for the visa. Within this context, the court also judged that Turkish citizens could not travel to EU Member States without a visa of maximum 3 months duration for tourist purpose and that visa obligation for Turkish citizens was justified on juridical ground.

This case is of great importance for all EU Member States because of its possible outcomes on their visa policy. Political considerations have been decisive through the case in which nine member states were involved. These political considerations led the European Court of Justice to deliver a judgement against its own precedent case laws.

According to many observers, the European Court of Justice gave way to political pressures of EU Member States. The Court of Justice who had various occasions emphasized in his precedent law cases that “the ultimate aim of the Association Agreement between Turkey and EU was full membership” and that “the agreement envisioned to prepare Turkey for full membership and to make its integration step by step”, considers now the Association Agreement as merely an economic agreement in this last case thus contradicting itself from precedent case laws. Unfortunately this decision gave the impression that political constraints have been effective in the case. The same Court of Justice had concluded on an earlier decision that Article 41 of Additional Protocol was clear and definitive and that the application of Article 41 was not bounded with decision of any other authority. The court also had mentioned in the same decision that visa obligation meant violation of agreement, as it was obviously a new restriction.

Nevertheless, it should be underlined that this decision concerns only those who may travel in order to benefit passively from services in EU Member States. Decisions ruling the visa obligation as a violation of agreement, in the cases of providing service and setting up a business, are still effective. Precedent decision ruled on the Soysal Case regarding the visa-free travel for service providers from Turkey is also still valid. As acquainted by the non-governmental organization European Stability Initiative, EU Member States are obliged to comply with this ruling.

The Economic Development Foundation (İKV), an organization that aims to contribute to progress in Turkey-EU relations with special reference to freedom of movement, is deeply disappointed by this latest ruling delivered on the Demirkan Case by the European Court of Justice.

Prof. Rolf Gutmann, attorney of Leyla Ecem Demirkan, will give further information on the case in a seminar organized by IKV on the 8th October 2013.