Geschrieben von: Dr. Klaus Dienelt
What effects has the judgement to the visa requirements of the Member States?
Under normal circumstances, the date of the 1st of January 1973 should also affect countries which became members of the EU at a later date, because the Additional Protocol forms an integral part of the Acquis Communauitaire. However, the Court’s approach is different.
Following the Court’s judgement, a retroactive research has to be made in order to figure out whether there has been a visa requirement for Turkish citizens in a particular member state. The date shall be decisive for the application of the standstill clause at which a new member states has joined the Union.
For example, while for Spain this date is 1986, it is 2007 for Romania. In other words, the date of the 1st of January 1973 is not valid for member states which were admitted to the Union later.
To figure out whether there is an obligation for Turkish nationals to obtain a visa, it’s important to prove whether the Member States’ immigration law provided visa requirements at the date of the accession to the EU.
Consequently, Turkey faces a patchy structure regarding the visa requirements in the EU Member States. In other words, the European Court of Justice did not rule that this judgment is binding for all Member States under all circumstances.
On the assumption that this is the definitive position of the Court, it is necessary to consider the individual position of each Member State.
There is no available public information to find out which Member States exempted Turkish nationals from a visa obligation at the decisive point of time. The commission mentioned in its guidelines regarding the visa obligations of Turkish nationals that only Germany and Denmark are affected by the judgment.
It is surprising that only Denmark and Germany have been mentioned in this report, because a greater number of Member States have ratified the European Agreement of the 13th of December 1957 on regulations governing the movement of persons between Member States of the Council of Europe.
This is an agreement cancelled the obligation to hold visa for Turkish nationals visiting the contracting parties on short visits, with the consequence that Turkish nationals were allowed to enter Germany, France, Belgium, Italy, Netherlands and Luxemburg without visa for the purpose of a temporary staying.
The obligation to hold visa has been re-established by the mentioned Member States for Turkish nationals around 1980 – with one exception: Italy. This shows that the changes of the visa requirements entered into force long time after the decisive date of 1 January 1973.
Spain and Portugal became members of the EU in 1986. The Portuguese Government suspended the application of the Agreement in respect of Turkey with effect of June 1991. Spain never suspended the Agreement. With the result that the exemption of the obligation to obtain visa for Turkish nationals falls within the scope of the standstill clause within both Member States
Lastly, the Tum und Dari case shows that the United Kingdom is also affected by the decision of the European Court of Justice, even though it hasn’t ratified the mentioned Agreement.
Have the ruling effects to a large number of Member States, it is necessary to find a solution within the Schengen system. Because otherwise Turkish citizens may enter Member States, which are affected by the standstill clause, without visa and than move within the Schengen area without any restrictions.
In order to effectuate the ruling of the European Court of Justice it would be helpful if the Commission could take the lead to find a practical solution.
What are the effects of the Soysal-judgement for the German visa requirements?
The need to obtain a visa before entering Germany was governed, at the time when the Additional Protocol came into force, by Article 5 Paragraph 1 of the regulation for the implementation of the aliens act of 1965.
A residence permit had be obtained before entry in the form of a visa by foreigners who wish to take up employment and by citizens of a country, not listed in the appendix to this regulation.
Employment was regarded as any self-employed activity or an employment, designed to obtain an income or for which a wage was agreed or expected, depending on the circumstances.
In the specific case of service providers you have to prove carefully whether a visit will be not used for the purpose of employment. In this context you have to take notice to the General Administrative Regulation of 7th July 1967 , which clearly define what employment in terms of administrative practice was.
For instance, businessmen, who want to sign contracts, had been exempted from the visa obligations by this General Administrative Regulation.
For other visits, there was, without any time limit, basically no obligation to obtain a visa. The obligation to obtain a visa came into force on the 5th of October1980 after the withdrawal of the German-Turkish visa agreement of 1953. Therefore, this law entered into force long time after the decisive date of the 1st of January 1973.
Because of Article 1 Paragraph 2 nos. 1 to 4 of the regulation for the implementation of the aliens’ act of 1965 a number of purposes were exempted not only from the visa process but also from the requirement to obtain a residence permit. This means that after entry, a visit was lawful without obtaining a residence permit.
Firstly, according to these rules, Turkish citizens, who were holders of national passports, did not need a residence permit, if they do not intended to stay for longer than three months and do not wish to take up employment.
Secondly, Turkish employee who entered Germany for a stay of less than two months for the purpose of legally providing services for an employer established in Turkey were exempted from the obligations to obtain a visa and a resident permit. So a driver who was employed in the cross-border transport of passengers or goods could come to Germany without visa and could stay here without a resident permit for two month.
Lastly, Turkish nationals were exempted to obtain visa for the purpose of legally providing services in Germany consisting of paid speeches or paid artistic, scientific or sports activities.
For the purposes of tourism, this means the following:
After entry, a Turkish citizen needed a residence permit, if he wished to stay in Germany for longer than three months or to take up employment. Should a Turkish citizen intended to stay for more than three months, entry without a visa was possible, however, after entry, a residence permit needed to be obtained.
By assessing the current entry processes on the basis of the standstill clause, I’m coming to the following conclusions:
• A Turkish citizen, entering for the purpose of providing or receiving services without a visa, enters federal territory lawfully. He may legally remain within federal territory after entry if he does not wish to remain within Germany for longer than three months, does not wish to take up employment and does not change the purpose of his visit.
• A Turkish citizen, entering for the purpose of providing or receiving services without a visa and subsequently changes the purpose of his visit has entered the federal territory lawfully. But he has to apply for a resident permit if he for example wishes to take up employment or wants to reside in Germany with his family.
• A Turkish citizen, entering 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.
• A Turkish citizen, entering without a visa in order to establish himself for the purpose of exercising self-employed activities within Germany, cannot refer to the standstill clause. Because at the time when the Additional Protocol came into force, he would have needed a visa.
• A Turkish citizen, entering Germany for the purpose of a family reunion, can’t refer to the standstill clause, because he wants to reside permanently within the federal territory. The standstill clause of Article 13 ARB 1/80 does not cover the entry process and therefore has no effect on the obligation to obtain a visa.