Political Reluctance and Judicial Activism in the Area of Free Movement of Persons: The Court as the Motor of EU–Turkey Relations?

• DOI: http://doi.org/10.1111/eulj.12031
• Published date: 01 May 2013
• Author: Anja Wiesbrock
• Date: 01 May 2013

Political Reluctance and Judicial Activism

in the Area of Free Movement of Persons:

The Court as the Motor of

EU–Turkey Relations?

Anja Wiesbrock*

Abstract: Progress in the EU–Turkey accession negotiations has been slow in recent

years, with the free movement of persons constituting one of the most controversial

issues. The political reluctance and public opposition towards opening up free movement

rights to Turkish nationals have led to a deadlock in this area since the early 1980s. In

the face of a reluctant legislator, the Court has taken an activist stance. In a number of

recent cases, it has interpreted the rights of Turkish migrants extensively, allowing for a

transformation of status from family member/student to worker and applying the stand-

still clauses to conditions of admission. This article explores the role of the Court in

pushing forward the free movement agenda. It discusses the implications of the Court’s

rulings for the free movement of persons between the EU and Turkey, and for the

division of tasks between the Court and the legislator.

I Introduction

The subject of Turkish accession to the EU has long been hotly debated and is likely

to be one of the most controversial items on the EU post-Lisbon agenda. Even though

accession negotiations with Turkey started in October 2005, the EU has continuously

emphasised the ‘open-ended’ nature of such negotiations, leading to a large degree of

uncertainty regarding the f‌inal outcome of the Turkish membership bid.1Integration

between the EU and Turkey has gone furthest in the area of free movement of goods.

The Customs Union, which covers manufactured goods and processed agricultural

products, has substantially facilitated market access and diminished trade barriers.

This is in spite of the fact that it came into being much later than anticipated and that

certain areas, such as services and public procurement, are still excluded.2According

* Postdoctoral Fellow, University of Oslo, Faculty of Law, Oslo, Norway.

1H. Arikan, Turkey and the EU: An Awkward Candidate for EU Membership? (Ashgate, 2006), at 1.

2See for the establishment and characteristics of the customs union, B. Yilmaz, ‘The Relations of Turkey

with the European Union: Candidate Forever?’ (2008) 167 Centre for European Studies Working Paper

Series 3–8.

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European Law Journal, Vol. 19, No. 3, May 2013, pp. 422–442.

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to a recent report of the European Parliament, the Customs Union has allowed trade

volumes between the EU and Turkey to reach EUR 100 billion per annum at their

peak in 2008.3As to the contrary, in the area of free movement of persons, the

opening of borders and the abolishment of restrictions to free movement are among

the most controversial issues in EU–Turkey relations, and arguably among the biggest

obstacles to full membership. The European public is worried about the potential

inf‌low of Turkish migrants to the EU, regardless of the fact that previous enlarge-

ments have proven fears of large migratory movements as false.

The lack of progress in the area of free movement rights stands in contrast to the

objectives formulated in the early stages of EU–Turkey cooperation. Ever since the

signing of the Association Agreement in 1963,4EU–Turkey relations in the f‌ield of

free movement of persons have been guided by the objective of ‘progressively’ secur-

ing the freedom of movement for economically active persons. In the 1970 Additional

Protocol (AP) to the Association Agreement between Turkey and the EU, the two

parties committed themselves to establish free movement of workers by 1986. Also,

the progressive free movement of service providers and self-employees was envisaged.

Yet, lagging far behind the timetable set in the Association Agreement and the AP,

there has been no political agreement on extending free movement rights since the

1980s. Even though both legal instruments were initially envisaged to be replaced by

more favourable provisions, such an extension of rights has never taken place. Hence,

the political reluctance and public opposition towards opening up free movement

rights to Turkish nationals have led to a deadlock in this area since the early 1980s.

As a consequence, nowadays, Turkish nationals still have to rely on the AP concluded

in 1970 and Decision no. 1/80 adopted in 1980 when exercising their rights to reside,

work, establish themselves or provide services in the EU. As both instruments lack a

right of entry for Turkish nationals, the standstill clauses and the non-discrimination

provisions contained in these documents have become the most crucial provisions for

Turkish migrants to rely on.

In the face of political reluctance to live up to the promises made in the 1970s to

gradually demolish barriers to the free movement of persons, the Court has taken an

activist stance in EU–Turkey relations, in particular in the area of the free movement

of persons. In fact, it seems that the Court has become the main motor of EU–Turkey

integration in this area, interpreting the standstill clause and non-discrimination

provisions contained in the AP and Decision no. 1/80 broadly. Even though the

extension of the rights of Turkish nationals and the abolishment of restrictions to the

free movement of persons between the EU and Turkey may be desirable from a

substantive point of view, the question arises whether it is for the Court to decide

when and how such a process is to take place.

This article explores the role of the Court in pushing forward the free movement

agenda apparently against the wishes of the legislator and in spite of a largely negative

public opinion. After giving an overview on political reluctance in the EU–Turkey

3European Parliament resolution of 21 September 2010 on trade and economic relations with Turkey,

2009/220(INI).

4Agreement establishing an Association between the European Economic Community and Turkey, signed

at Ankara on 12 September 1963 by the Republic of Turkey on the one hand, and by the Member States

of the EEC and the Community on the other hand, and concluded, approved and conf‌irmed on behalf

of the Community by Council Dec 64/732/EEC of 23 December 1963 (JO 1964 217, at 3685; English

version published in OJ 1973 C 113, at 1).

May 2013 EU–Turkey Free Movement of Persons

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