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Effects of Soysal decision (European Court of Justice) / Visa process Turkish citizens Germany

Geschrieben von: Dr. Klaus Dienelt

Effects of the Soysal decision by the European Court of Justice on the visa process for Turkish citizens in Germany

On 12th September 1963, a Treaty of Association was concluded between the European Economic Community and Turkey and was enshrined in the law of 13th May 1964 . The treaty and the Additional Protocol of 23rd November 1970  pursue the long term aim of preparing Turkey for accession to the European Union by increasing the coordination of economic policy and creating a customs union (since 1st January 1996).

The standstill clause

Article 41 Paragraph 1 of the Additional Protocol contains a standstill clause, which is worded as follows: “The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”

In order to understand the effect of the standstill clause, it is important to note that the standstill clause does not directly grant any rights, but preserves the legal situation at a specific point in time, and in doing so, confirms the applicability of the favourability principle: Changes to the legal situation in favour of a party are possible and may be called for. By contrast, the party in question may refer, in the case of changes that are disadvantageous to him/her, to the more favourable legal situation at the time when the standstill clause came into force . In this respect, in the Soysal case, the European Court of Justice stated: „ ... such a clause prohibits generally the introduction of any new measures having the object or effect of making the exercise by a Turkish national of those economic freedoms on the territory of that Member State subject to stricter conditions than those which applied to him at the time when the Additional Protocol entered into force with regard to the Member State concerned“.

The ruling does not only regard the German visa requirements. The effects of the decision are concerning Member States which on 1 January 1973 or at the time of their accession to the EEC did not have a visa requirement for Turkish citizen. When applying the standstill clause, account must therefore be taken not only of the different factual requirements of the visa requirements in the Member States, but also of the circumstances that the Article 41 Paragraph 1 of the Additional Protocol have rendered applicable at various times. Consequently, Turkey faces a patchy structure regarding the visa applications in a large number of Member States. At least the following countries, who are parties to the agreement concerning free movement of persons between the Member States of the Councile of Europe concluded in 1957, are affected: Belgium, Germany, France, Greece, Italy, Luxembourg, Netherland, Portugal and Spain. The United Kingdom is also affected by the standstill clause even it isn’t a party of the agreement. But the United Kingdom didn’t have a visa requirement for Turkish citizens in 1973.

When interpreting the Additional Protocol, which forms an integral part of the Treaty of Association pursuant to Article 62, note should be taken that this is a treaty that is valid under international law. As the Commission explained in its statement on the case of Torun , the content of an agreement that is valid under international law cannot be automatically changed by altering the legal situation for one of the contractual partners. The character of international law stems precisely from the fact that only the sovereign contractual parties can commit themselves, heteronomous standard setting is out of the question in this context.

Decisive for the interpretation of the standstill clause is therefore the understanding of the freedom of services at the time when the Additional Protocol came into force whereby the regulations must be interpreted dynamically to incorporate the case law of the European Court of Justice.

The transferability of passive freedom of services to the standstill clause is supported by the fact that, at the time when the Additional Protocol came into force, the freedom of services mentioned in the EEC Treaty already included the passive freedom of services as a legal position.

The provisions of secondary Community law unequivocally indicate that the passive freedom of services is also enshrined in the original EEC Treaty. In directive no. 64/221/EEC of 25.02.1964, which is based on Article 56 Paragraph 2 of the EEC Treaty, and which governs the coordination of special provisions for the entry and residence of foreigners, where these are justifiable on the grounds of public order, security and health, the preamble also includes cross-border recipients of services in the subject matter of the provisions. As a consequence, pursuant to Article 1 Paragraph 1 RL 64/221/EEC, those citizens of Member States who move to another member country “in order to pursue an activity as … a recipient of services” are governed by the directive. Pursuant to Article 1 Paragraph 2 RL 64/221/EEC, close relatives of the passive service recipient also benefit from this directive.

In another subsequent legal act, namely directive no. 73/148/EEC of 21.05.1973 on the abolition of travel and residency restrictions for citizens of Member States within the Community to the area of the subsidiary branch and the exchange of services, the passive freedom of services is once again expressly recognized and, more importantly, enshrined in residency law. Pursuant to the preamble to directive no. 73/148/EEC, the free exchange of services requires “that persons providing and receiving services should have the right of residence for the time during which the services are being provided“.
As the freedom of services outlined in the EEC Treaty included the passive freedom of services at the time when the Additional Protocol came into force, the European Court of Justice did not initially interpret the term freedom of services broadly within the framework of judicial case law. It simply referred to the content of the freedom of services established and applied from the inception of the common legislative process, which also included the receipt of services. Consequently, the European Court of Justice has already ruled on a number of occasions that tourists, as well as people undergoing medical treatment, and those studying or making business trips, should be regarded as recipients of services.

It should not be inferred from any statement by the contractual parties that, when the treaty was concluded, the Community, the Member States or Turkey wished to incorporate a concept other than the freedom of services established and accepted within the Community into association legislation. In this respect, there are no objections to a corresponding interpretation of the concept of freedom of services within the framework of the standstill clause.

This means that the view held by the German Government , that the Soysal ruling does not grant Turkish citizens a right to enter Germany without a visa for the purpose of receiving services (so called passive freedom of services), is incompatible with the European Court of Justice’s previous case law.

National entry legislation for Germany in 1973

The need to obtain a visa before entering Germany was governed, at the time when the Additional Protocol came into force by § 5 Paragraph 1 of DVAuslG (provisions for implementation of the aliens act) of 10.09.1965  in the version of 13.09.1972  – referred to hereinafter as  DVAuslG 1965.

Turkish citizens, who, according to the positive list, were in principle exempt from the need to obtain a visa, only needed a visa before entry pursuant to § 5 Paragraph 1 no. 1 DVAuslG 1965 when they wished to take up employment within federal territory. Employment, in this regard, was regarded as any self-employed activity or employment, designed to obtain an income or for which a wage was agreed or was expected, depending on the circumstances . In the specific case of service providers, a thorough check must always be conducted as to whether a visit is not being used for the purpose of gainful occupation.

For other visits, there was, without time limits, basically no obligation to obtain a visa, as this was only introduced by the 11th amendment regulation to DVAuslG from 01.07.1980  for Turkish citizens. By the same token, the obligation to obtain a visa could come into force on 05.10.1980 because of the necessary withdrawal of the German-Turkish visa agreement of 1953.

The general restriction on visits without a visa to a period of three months was likewise introduced at a later date, namely by the 14th amendment regulation to DVAuslG of 13.12.1982  with effect from 18.12.1982; it thus also does not apply to Turkish citizens, who are able to refer to the standstill clause.

If a visa was only to be obtained before entry when taking up employment, it follows from § 1 Paragraph 2 nos. 1 to 4 DVAuslG 1965, that certain purposes were exempt not only from the visa process, but altogether from the requirement to obtain a residence permit. This means that after entry, the visit was lawful without obtaining a residence permit. According to these rules, Turkish citizens, who were holders of national passports, did not need a residence permit, if they

“1. do not stay for longer than three months within the area of application of the aliens act and do not wish to take up employment,

2. stay in the service of a service provider not based in the area of application of the aliens act for the purpose, by its very nature, of a temporary service as an employee within the area of application of the aliens act, so long as the length of the stay does not exceed two months. The exemption does not apply to foreigners who wish to take up an itinerant trade with the area of application of the aliens act (§ 55 of trade regulations),

3. while maintaining their usual stay abroad, wish to become involved, within the area of application of the aliens act, in lectures or presentations of an artistic, scientific or sporting nature, so long as the length of the stay does not exceed two months,

4. holders of seaman’s record books, which have been issued by the authorities within the Federal Republic of Germany, so long as they only stay to exercise or in connection with their activity as crew members of ships within the area of application of the aliens act.”

For the purposes of tourism, this means the following: After entry, a Turkish citizen needed a residence permit, if he/she wished to stay in Germany for longer than three months or to take up employment. Should a Turkish citizen have intended to stay for more than three months, entry for this without a visa was possible , however, after entry, a residence permit needed to be obtained, as the exemption situation outlined in § 1 Paragraph 2 no. 1 DVAuslG 1965 only applied for scheduled stays of up to three months.

When assessing current entry processes on the basis of the standstill clause, this has the following effects:

•    A Turkish citizen, who entered for the purpose of providing a service or receiving a service without a visa, entered the federal territory lawfully. He/she may legally remain within federal territory after entry on the basis of the exemption in § 1 Paragraph 2 no. 1 DVAuslG 1965, if he/she does not wish to remain within federal territory for longer than three months, does not wish to take up employment and does not change the purpose of his/her visit. In addition, the other exemption situations pursuant to § 1 Paragraph 2 no. 2 to 4 DVAuslG 1965.

•    A Turkish citizen, who entered for the purpose of providing a service or receiving a service without a visa and subsequently changes the purpose of his/her visit (employment, family reunion) entered the federal territory lawfully. A Turkish citizen may be subject to § 5 Paragraph. 2 AufenthG – Entries without the necessary visa for the actual purpose of the visit –, because he/she has entered for the new purpose of the visit without the necessary residence papers.

•    A Turkish citizen, who entered without a visa and claims to be arriving for the purpose of providing or receiving services, but who actually plans to take up employment, cannot refer to the standstill clause. The entry is illegal and the stay is unlawful and therefore criminal.

•    A Turkish citizen, who entered without a visa in order to establish himself/herself for the purpose of exercising self-employed activities within federal territory, cannot refer to the standstill clause, since the fact remains that at the time when the Additional Protocol came into force, his/her entry required a visa pursuant to § 5 Paragraph 1 no. 1 DVAuslG 1965.

•    A Turkish citizen, who entered federal territory for the purpose of a family reunion, cannot refer to the standstill clause in Article 41 of the Additional Protocol, because he/she wants to establish himself/herself permanently within federal territory. The standstill clause in Article 13 ARB 1/80 does not cover the entry process and therefore has no effect on the obligation to obtain a visa.

Have the ruling effects to a large number of Member States it is nessecary to find a solution within the Schengen system. Otherwise Turkish citizens will enter the Member States, which are effected by the standstill clause, without visa and than move within the Schengen area without legitimacy.

In order to effectuate the ruling of the ECJ, it would be helpful if the Commission take the lead to find a practical solution under the principle of respect for rule of law. However, this is not the case thus far.

Dr. Klaus Dienelt
Judge at the Darmstadt Administrative Court
Operator of the internet portal www.migrationsrecht.net