The European Union (EU) is a unique economic and political union between 27 European countries. The predecessor of the EU was created in the aftermath of the Second World War. The first steps were to foster economic cooperation: the idea being that countries that trade with one another become economically interdependent and so more likely to avoid conflict. The result was the European Economic Community, created in 1958 with the initial aim of increasing economic cooperation between six countries: Belgium, Germany, France, Italy, Luxembourg and the Netherlands. Since then, 22 more countries joined (and the United Kingdom left the EU in 2020) and a huge single market (also known as the ‘internal’ market) has been created and continues to develop towards its full potential. What began as a purely economic union has evolved into an organisation spanning many different policy areas, from climate, environment and health to external relations and security, justice and migration. A name change from the European Economic Community to the European Union in 1993 reflected this.
Several institutions are involved in making decisions at EU level, in particular:
- the European Parliament, which represents the EU’s citizens and is directly elected by them;
- the European Council, which consists of the Heads of State or Government of the EU Member States;
- The Council, (also called the Council of the European Union) which represents the governments of the EU Member States;
- the European Commission, which represents the interests of the EU as a whole.
The aims of the European Union within its borders are:
- promote peace, its values and the well-being of its citizens
- offer freedom, security and justice without internal borders, while also taking appropriate measures at its external borders to regulate asylum and immigration and prevent and combat crime
- establish an internal market
- achieve sustainable development based on balanced economic growth and price stability and a highly competitive market economy with full employment and social progress
- protect and improve the quality of the environment
- promote scientific and technological progress
- combat social exclusion and discrimination
- promote social justice and protection, equality between women and men, and protection of the rights of the child
- enhance economic, social and territorial cohesion and solidarity among EU countries
- respect its rich cultural and linguistic diversity
- establish an economic and monetary union whose currency is the euro
The aims of the EU within the wider world are:
- uphold and promote its values and interests
- contribute to peace and security and the sustainable development of the Earth
- contribute to solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights
- strict observance of international law
The European Union is based on the rule of law. This means that every action taken by the EU is founded on treaties that have been approved voluntarily and democratically by all EU countries. The treaties are negotiated and agreed by all the EU Member States and then ratified by their parliaments or by a referendum.
The last amending treaty, the Lisbon Treaty, came into force on 1 December 2009. Earlier treaties are now incorporated into the current consolidated version, which comprises the Treaty on European Union and the Treaty on the Functioning of the European Union.
More recently, the EU agreed upon the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, an intergovernmental treaty that obliges participating countries to have firm rules to guarantee balanced public budgets and strengthens the governance of the euro area.
Relations with the EU
EU Accession Process
The process of accession include negotiations with each candidate country on the timing of and regulations for adopting and enacting EU Acquis Communautaire (commonly referred to as the “Acquis”) as well as the methods of implementation. Candidate countries are required to adopt the EU acquis as a whole. It is not sufficient for a candidate country to enact laws or regulations to become an EU member. It is necessary to create the required "judicial and administrative" capacity to be able to apply the adopted legislation. In other words, the candidate country has the responsibility to create institutions or units that will implement the legislation and to strengthen their implementation capacity.
The negotiations with Türkiye started only after Copenhagen criteria were met. Türkiye officially began accession negotiations on October 3, 2005, with the Intergovernmental Conference held in Luxembourg. The process of accession negotiations refers to the time period, in which the following issues are determined for each candidate state: How much time is needed for the candidate state to adopt EU Acquis as a part of internal legislation and to put it into force? How is the candidate country going to implement EU Acquis in an effective manner? The EU Acquis is the name given to the EU's legal system. It consists of about 120 thousand pages. Acquis includes the treaties which established the EU and were subsequently amended, the accession treaties that candidate countries signed when joining the EU as well as all the legislation enacted by bodies such as the Council, the Commission and the Court of Justice of the European Communities. This acquis covers 35 chapters within the framework of the Negotiating Chapters. The chapter headings of the EU Acquis are as follows:
1- Free movement of goods 2- Freedom of movement for workers 3- Right of establishment and freedom to provide services 4- Free movement of capital 5- Public procurement 6- Company law 7- Intellectual property law 8- Competition policy 9- Financial services 10- Information society and media 11- Agriculture and rural development 12- Food safety, veterinary and phytosanitary policy 13- Fisheries 14- Transport policy 15- Energy 16- Taxation 17- Economic and monetary policy 18- Statistics 19- Social policy and employment 20- Enterprise and industrial policy 21- Trans-European networks 22- Regional policy and coordination of structural instruments 23- Judiciary and fundamental rights 24- Justice, freedom and security 25- Science and research 26- Education and culture 27- Environment 28- Consumer and health protection 29- Customs union 30- External relations 31- Foreign, security and defense policy 32- Financial control 33- Financial and budgetary provisions 34- Institutions 35- Other issues
What are the phases of the accession process?
Negotiations begin with the first stage of the process called “screening”. The leading actors at this stage are the European Commission and Turkish bureaucrats. The main purpose of screening, intended basically to speed up the pre-accession process and to prepare Türkiye for negotiations, is to provide information about the EU legislation to the Member State, to specify the differing points between the country's own legislation and the acquis, and to set forth a general agenda of accession and to determine potential problems which may arise within this process. As screening for each chapter is completed, the Commission presents a "screening report" to the candidate state. The evaluations and recommendations in this report provides the basis for the commencement of negotiations related to this chapter. The Commission assesses whether the candidate country is ready for negotiations based on the information it provides and specifies its situation in the screening report. In the final section of the report, the Commission either directly suggests opening negotiations for the chapter in question or requires that certain conditions –opening benchmarks- should first be met. The "screening report" related to any chapter is prepared by the European Commission and then submitted to the EU Council, where it has to be accepted in the form of an unanimous decision. Therefore, if the Commission has not determined any opening benchmarks, or if the Commission has done so, but the country has been able to fulfill the criteria in a certain period, the Commission can propose the opening of the chapter to negotiations with the screening report it has prepared to be submitted to the Council. All member states of the Council must unanimously agree upon this proposal of the Commission. Otherwise, the chapter cannot be opened for negotiations. The same procedure applies to the closing of the chapter. The negotiation chapters are temporarily closed initially if the candidate country is considered to comply with the acquis in terms of content and implementation. (Example: On June 12, 2006, the Science Research Chapter was opened and it was closed on the same date.) If the acquis compliance and implementation level of the candidate country is not considered satisfactory for the temporary closure of the chapter, closing benchmarks may be set in the Council taking into account the Commission's assessments. In such a case, the report stating that closing benchmarks have been met must be unanimously accepted by the Council. At first the chapters are temporarily closed. Then, at the end of the negotiation process, all chapters are re-evaluated and definitively closed. There are two reasons for this. Firstly, since the negotiation process takes many years, there may be significant changes in the acquis during this time, and the candidate country may need to comply with it, too. Secondly, the compliance level of the candidate country in the temporarily closed chapter may have decreased in time. The process can be briefly summarized as follows:
Screening (explanatory and detailed) -> screening report - > opening of chapters for negotiations, if considered satisfactory; or setting opening benchmarks if the criteria are not met -> opening the chapter for negotiation if opening benchmarks are met -> temporary closing of the chapter if the candidate country is compatible to the EU in terms of national law and implementation; or introducing closing benchmarks, -> closing the chapter definitively upon the alignment with the acquis, when the candidate country is ready for membership
Relations between the Ministry and EU
Our Ministry carries out the necessary work related to 13 chapters of the acquis, including “Chapter 2 on the Free Movement of Workers” and “Chapter 19 on Social Policy and Employment", both of which fall within the Ministry's scope of responsibility.
- Chapter 19 on Social Policy and Employment
Activities for working life have been conducted prioritizing the labour law, health and safety at work, social dialogue, employment policy, social inclusion, anti-discrimination, equal opportunities and unregistered employment, all of which are covered by Chapter 19 on Social Policy and Employment. Along with incorporating EU legislation into domestic law, implementing it effectively and supervising the implementation in the aforementioned areas, further activities are ongoing to develop the institutional capacity of the relevant institutions. The important dates of the negotiation process as regards this chapter are as follows:
In order to open the chapter for negotiations, there are 2 opening benchmarks to be met, after the screening is completed: Negotiations on Chapter 19 are going to begin after fulfilling the requirements of trade unions rights alignment with the legislation of the European Union and the International Labour Organization (ILO) and the submission of an action plan for the adoption of the acquis. In fact, Türkiye has fulfilled both criteria to a large extent. (The action plan was completed and submitted in 2010. The Law on trade union rights came out in 2012, but the EU considers that this Law has not yet fully met ILO and EU standards.)
- Chapter 2 on the Free Movement of Workers
The concept of Free Movement of Workers, like other economic factors, refers to the movement of labour in the EU single market without encountering any obstacles. It is one of the four main freedom areas in the European Union Single Market. Legislation under this chapter regulates the right of the citizens of the European Union member states, who perform income generating work affiliated to an employer, to work in another member country, and the right to benefit from equal treatment with other countries' citizens regarding subjects such as working conditions, social benefits and taxation. The right to work includes the right to seek employment in another member state, to reside and stay for such purpose, and to unite with other family members. Also, a system for coordinating social security has been developed based on this chapter so that the social security rights are not interrupted in cases where the European Community citizens and their family members registered within a specific social security system move to another Member State. The important dates of the negotiation process on this chapter are as follows:
EU Commission has not yet provided the screening report and the negotiations have been blocked.
Türkiye-EU Association Law
I-LEGAL FOUNDATIONS OF TÜRKİYE-EU ASSOCIATION’S SOCIAL DIMENSION
Important legal documents in terms of Turkish-EU Association Law in the field of Social Rights are Ankara Agreement and the Additional Protocol, Decisions of the EU Association Council (OCD) numbered 2/76, 1/80, 3/80 and 1/95, and the Decisions of the Court of Justice of the European Communities (CJEU) regarding cases related to Turkish citizens, based on the aforementioned documents, the first one being the Decision issued on 30.09.1986. A large part of these decisions, which are binding on Member States, are on Association Council Decision No. 1/80, the rest of them relating to Ankara Agreement, the Additional Protocol and Association Council Decision No 3/80. These are major case law decisions protecting the social rights of Turkish citizens in the EU in an indisputable way. Our citizens can resort to them while seeking their rights before national administrative and judicial authorities. These are legal texts which are binding upon the member states and are superior to their national legislation. They cannot be changed with national regulations. In other words, these decisions include principal provisions which the national legislation should conform with.
As suggested by the European and Turkish experts in this field, the aforementioned documents are included in the narrow definition of Association Law whereas documents on fundamental rights signed by the United Nations (including ILO Conventions), the European Convention on Human Rights, the European Settlement Agreement, the European Convention on Social Security, the Decisions of the European Court of Human Rights on the social rights of immigrant workers, the Directives of EU on third world countries citizens, EU regulations on the equal treatment for recruitment and social security rights of those residing and working in Europe, Social Security and Labour Agreements signed between Türkiye and various member states as well as a number of other important international texts on the issue can be covered within the wide interpretation of Association Law. As indicated in the comments and explanations of the EU Commission and the European Court of Justice from time to time, it is also possible to refer to these legal documents while considering Association Law in a narrow sense and to benefit from their relevant provisions as supporting arguments.
Article 12 of Ankara Agreement, signed on September 12, 1963 to establish an association between Türkiye and the EU, secures a gradual introduction of freedom of movement for the workers of contracting parties, being inspired by Articles 48, 49 and 50 of the Treaty of the European Economic Community on free movement. Article 7 of Ankara Agreement obliges the signatory states to take all kinds of general and specific measures to fulfill the obligations arising from this agreement and to avoid regulations that may jeopardize the realization of the objectives of the agreement.
Article 36 of the Additional Protocol, which was signed on November 23, 1970 and which establishes a timetable for the implementation of the Ankara Agreement, provides that the freedom of movement shall be secured by progressive stages between the end of the twelfth and of the twenty-second year after entry into force of the Association Agreement, which covers the period between 1976-1986.
Article 37 of the Additional Protocol states that member states shall not discriminate workers of Turkish nationality employed in the Community as regards conditions of work and remuneration whereas Article 39 secures the coordination of social security measures for Turkish workers who enter into the labour market of member states. In other words, based on the articles of the Ankara Agreement and the Additional Protocol mentioned above, principles for ultimately achieving free movement have been specified; the intention to promote equality gradually in terms of the working conditions and social security rights of workers of the contracting parties has been indicated; and eliminating all the barriers against free movement has been set forth. Article 41 of this Protocol, which is of great importance, stipulates that new restrictive laws and practices cannot be introduced as of the effective date of the protocol regarding working, starting a business and conditions of residence, which is an inseparable part of these two, for Turkish citizens working with a legal status in EU member states.
Paragraph 2. under Article 36 of the Additional Protocol provides for the necessary arrangements for free movement between Türkiye and the Communities to be determined by the Association Council and the council has taken 4 tangible decisions on free movement and related issues, in accordance with the provisions of this article. These are Association Council Decisions No. 2/76, 1/80, 3/80 and 1/95 (ACD).
Accepted in 1976, Decision No. 2/76 specifies the principles of securing the first stage of free movement between 1976-1980, delineating the rights of Turkish workers and their family members, who have entered the labour market of Community countries.
The principles of the second stage of free movement, covering the period between 1980- 1983, were established with Decision No. 1/80, accepted in 1980 by the Association Council. Articles 6-15 of Decision No. 1/80, which replaced ACD No 2/76 by developing its provisions, include provisions on employment and free movement. Articles 6 and 7 regulating the employment law consolidated with the increase in years of Turkish workers’ employment as well as the employment rights of their family members are of special importance. The great majority of lawsuits of our citizens by the Court of Justice of the European Communities (CJEU) have been predicated on these articles. Article 6 postulates that a Turkish worker duly registered as belonging to the labour force of a Member State shall be entitled in that member state, after 1 year’s legal employment, to the renewal of his permit to work for the same employer; that he/she shall be entitled to respond to another offer of employment, with an employer of his choice, for the same occupation, after 3 years of legal employment; and that he/she shall enjoy free access to any paid employment after 4 years of legal employment. Article 7 lays down the employment conditions for the members of the family of a Turkish worker and the right to reside resulting therefrom.
Article 8 of the Decision indicates that priority shall be given to Turkish workers over the citizens of other third world countries in cases where it is not possible in the Community to meet an offer of employment by calling on the labour available on the employment market of the Member States.
Article 9 of the Decision No. 1/80 guarantees the right to equal treatment for children in terms of general education and vocational training while Article 10 grants the right to equal treatment for the Turkish workers as regards remuneration and other conditions of work. Article 13 bans the introduction of new restrictions on the conditions of access to employment applicable to Turkish workers and members of their families legally resident and employed in member states. Article 14 prohibits any restrictions on the provisions above, except for purposes including public interest, public security and public health.
Article 16 of the Decision assigned Association Council the task of determining the principles concerning the implementation of final phase whose commencement was envisaged as of 1 December 1983, yet despite the submittal of text of motion prepared by Turkish side for the final phase in 1983-1986 to the Community, no regulation was made in respect thereof. Due to the fact that the relation of partnership was for long interrupted from 1980 onwards, the Council of EU unilaterally suspended its commitment of free movement resulting from Association Agreement and Additional Protocol for an indefinite time on 24 November 1986 by adopting a decision envisaging a regulation excluding free movement for residence and work status of Turkish workers and family individuals in Community countries, not to mention reinforcement of the Decision No. 1/80, just before the date when free movement was expected to take effect pursuant to Additional Protocol, on the basis of a motion made by the Commission.
Another Association Council Decision concerning the social aspect is the Decision No. 3/80 dated 19 September 1980. This decision aims to ensure coordination of social security rights of Turkish workers and family members possessing work and residence permit in more than one of these countries, in the light of Regulation 1408/71 aimed at the coordination of social security schemes of the Community. It is still contentious whether this Decision is in force in its entirety, on account of the fact that the regulation on the application of this decision has not been introduced by the Council up to the present for incomprehensible reasons, despite several recallments and remarks made by the Commission and Court of Justice. Nevertheless, the Court of Justice decided on the binding and “direct impact” of this Association Council Decision and Additional Protocol on member states by interpreting certain articles thereof in some cases, stating that these are an integral part of Association, thus Community Law and provisions of these instruments, not necessitating additional regulation for application, are binding on the countries, in spite of absence of the Council’s Regulation on the application. A Recommendation on social issues was also issued in the Association Council Meeting No. 1/95 held on 6 March 1995 and forming Customs Union between Türkiye and EU. In the aforementioned Recommendation, it was envisaged that all kinds of measures be inquired for the establishment of a constant dialogue concerning Turkish workers legally employed in EU states and citizens of member states employed in Türkiye and for the provision of more effective integration of the workers in question.
- CERTAIN ISSUES ON THE FIELDS REGULATED BY ASSOCIATION LAW
- Issues Concerning Association Council Decision No. 1/80
Our citizens legally resident and employed in EU countries are subject to the legislation of these member countries on foreigners or restrictive implementations of administrative authorities, due to lack or deficient adoption of the privileged exclusive status compared to citizens of other third countries, granted by Association Council Decision No. 1/80 and they are faced with substantial impediments in exercising their rights arising from Association Council Decision No. 1/80. Besides, the Commission fails to duly put into place the mechanisms which are to impose sanctions to member countries due to lack of political will, for instance, it fails to duly initiate infringement proceedings provided by Article 169 of EEC Treaty (Treaty of Amsterdam, Article 226).
Although the issues vary in qualitative and quantitative terms by member states, it is observed that the ones where most problems with regard to the residence and work status are encountered by our citizens, a great majority of whom are resident in Germany, Holland, France, Austria and Belgium, are Germany, Austria, Holland and Denmark. This situation results from the regulations found in the legislations of these countries relating to foreigners, which include more restrictive provisions in comparison with other member states, falling behind the rights granted by Association Council Decision No. 1/80, under the influence of changes in policies on foreigners and perceptions in public opinions gradually gaining momentum after September 11 attacks in particular over the past decade. Judgements of Court of Justice of EU interpreting particularly Articles 6 and 7 of the aforementioned Association Council Decision in detail enabled the formation of major case law on Association Council Decision No. 1/80 as a result of our citizens’ legal struggle for the exercise of their rights arising thereby as from 1986. Affirming that association law is part of Community law, these judgements impose on member states the obligation to align their national legislation and implementations with association law. Despite the judgements of Court of Justice mentioned above, member states refrain from making regulations which will expand judicially obtained rights to include all our citizens from time to time.
The increase in the number of cases before Court of Justice relating to our citizens constitutes a fundamental means of “legal remedy” before both member states and EU institutions for the protection of rights of our citizens legally residing and working in EU countries, arising from association law. Referral of more cases to Court of Justice will be possible through review of case laws of the Court concerning our citizens and which will set precedent for them and by amplifying all kinds of notification activities at every level in this regard. Therefore, Part III elaborates on the judgements of Court of Justice viewed as crucial in terms of our citizens.
- Issues Concerning Association Council Decision No. 3/80
The issue concerning the application of Association Council Decision No. 3/80 adopted on the purpose of implementing social security schemes of member countries on Turkish workers and family individuals on the basis of Community Regulation No. 1408/71 setting out the coordination of social security rights belonging to citizens of member countries freely moving within the Community and Regulation on the Application of this Regulation No. 574/72 has not yet been ultimately resolved due to lack of issuance of the regulation on the application of this decision. Unlike Association Council Decision No. 1/80, the aforementioned Association Council Decision does not cover a provision as regards date of its entry into force. The motion of the Commission submitted to the Council in 1983 concerning issuance of a Regulation proposal to determine the application procedure of Association Council Decision No. 3/80 has not been taken into consideration up until today for political reasons and the aforementioned Regulation has not been issued, Taflan(Met) judgement referred to the Court in order to elucidate the issue of whether this Association Council Decision is in force has failed to achieve a clarification in this regard. Although Taflan(Met) judgement provides that the aforementioned Association Council Decision took effect on the date of its adoption, it sets forth that it cannot be directly applied due to its requisite of additional measures for application.
By Sürül case which is the 2nd case referred to the Court of Justice concerning the Decision No. 3/80, preliminary ruling of the Court was requested on whether its Article 3, which provides for equality in treatment between Turkish workers and Community workers in the field of social security and which is considered not to require additional regulations due to its characteristic of a definitive and explicit provision, had direct impact. As for this case, the Court concluded with its Judgement dated 4 May 1999 that Article 3(1) of Association Council Decision No. 3/80 had direct impact in member countries.
Thus, Sürül Judgement has brought a vital initiative on the path to resolve the application issue concerning Association Council Decision No. 3/80 and intensified the pressures on member states and Community institutions for generating a solution to the issue of application concerning the aforementioned Decision.
|Association Council Decision No. 1/80
|Association Council Decision No. 3/80
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