Cover Page. The handle holds various files of this Leiden University dissertation.

Transcription

1 Cover Page The handle holds various files of this Leiden University dissertation. Author: Tezcan, Narin Title: Legal constraints on EU Member States as primary law makers : a case study of the proposed permanent safeguard clause on free movement of persons in the EU negotiating framework for Turkey's accession Issue Date:

2 Legal constraints on EU Member States as primary law makers

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4 Legal constraints on EU Member States as primary law makers A Case Study of the Proposed Permanent Safeguard Clause on Free Movement of Persons in the EU Negotiating Framework for Turkey s Accession PROEFSCHRIFT ter verkrijging van de graad van Doctor aan de Universiteit Leiden, op gezag van Rector Magnificus prof. mr. C.J.J.M. Stolker, volgens besluit van het College voor Promoties te verdedigen op woensdag 27 mei 2015 klokke uur door Narin Tezcan geboren te Kardzhali, Bulgarije in 1977

5 Promotiecommissie: Promotoren: prof. dr. C.A.P. Hillion prof. dr. S.C.G. Van den Bogaert Overige leden: prof. dr. S.F. Blockmans (University of Amsterdam) prof. dr. M. Cremona (European University Institute, Florence, Italy) prof. dr. H. Kabaalioglu (Yeditepe University, Istanbul, Turkey) prof. dr. P.J. Slot prof. dr. R.C. Tobler LL.M. Lay-out: Anne-Marie Krens Tekstbeeld Oegstgeest ISBN N. Tezcan Behoudens de in of krachtens de Auteurswet van 1912 gestelde uitzonderingen mag niets uit deze uitgave worden verveelvoudigd, opgeslagen in een geautomatiseerd gegevensbestand of openbaar gemaakt, in enige vorm of op enige wijze, hetzij elektronisch, mechanisch, door fotokopieën, opnamen of enige andere manier, zonder voorafgaande schriftelijke toestemming van de uitgever. Het reprorecht wordt niet uitgeoefend. No part of this publication may be reproduced, stored in a retrieval system, made available or communicated to the public, in any form or by any means, without the prior permission in writing of the publisher, unless this is expressly permitted by law.

6 To my family and friends

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8 Acknowledgements Writing my PhD thesis was a long process: a process with its ups and downs. A process, which I wouldn t be able to either start or complete without the help and support of my family, friends, professors and colleagues. During my PhD my path crossed with wonderful people, many of whom I will not be able to name here. Thank you all for being part of my life and for allowing me to be part of yours. To start chronologically, first, I d like to thank Bas van Bockel and Julia Rapp, whom I met at İstanbul Bilgi University. Their encouragement and help was instrumental in my decision to come to Leiden. I enjoyed my LLM year very much. I learnt a lot from Prof. Christophe Hillion, Prof. Christa Tobler and Prof. Piet Jan Slot during that year and also later. They were there to support me throughout the whole PhD process. Of course the person that I am particularly grateful to is my first supervisor Prof. Christophe Hillion. Thank you very much for being my supervisor, for your inspiring ideas, suggestions, your patience and understanding. I am also very thankful to my second supervisor Prof. Stefaan Van den Bogaert, who was always there for me, for advice, consultation as well as consolation when needed. I was blessed with great colleagues and friends at the Europa Institute. First of all, I want to thank my dear roommates: Silvia, Barbara, Agis, Tom, Thomas and Maarten. I also thank Alison, Armin, Ay Ling, Darinka, Elsbeth, Francine, Ilektra, Jasmina, Katja, Licette, Lisa, Meehea, Moritz, Jorrit, Pieter, Sheena, Vestert, Vicky and Wendy. It was a pleasure as well as a privilege to work with you. Special thanks to my guardian angels, my paranymphs: Barbara and Darinka. I also want to thank TÜBİTAK for financing researchers from Turkish Universities coming to do research in Leiden. Thanks to those grants I was able to befriend great people like Pelin, Pınar, İlke and Özen. Thanks to Pınar Ölçer and our dean Prof. Lawson for involving me in their projects on Turkey. I am also very grateful to Prof. Goebel and Prof. Toni Fine, who welcomed me into Fordham Law School. I made many new friends in my research year in New York. Dicle, Levent, Feridun, Erzen, Jason, Valeria, Giovanni, Thomas, David, Luisa, Maria, and Carol, thank you for being part of my New York experience. I feel very lucky to have been part of the Turkish PhD community in the Netherlands. Being able to share experiences with people going through a similar process helped me put things into perspective. Melis and Oytun, you literally light up my world for the years we lived as neighbours. I still feel

9 VIII Acknowledgements your warmth from the other side of the world. My dear friends, I feel so lucky to have you. My buddies Esra and Özge, Berk, Dennis, Fırat, Hilal, Namık, Nazlı, Yunus, Zeren, Cornelia, Aleks and Maup, Sevgi and Sander, Nalan and Caner, Neşen and Caner, Alper and Sevinç, Umut and Umut, Nihal and Birol, Ahmet Hocam, without the concerts we went to, birthday parties we celebrated, lunches, dinners and raki nights in which we discussed the meaning of life and the depressing state of our home country, Dutch winters would feel gloomier and longer. Thanks to the Bahçeşehir gang (Ayşe, Berrin, Gülberk, Emin, Evrim) for still being in my life. If working with you hadn t been so much fun, I wouldn t have thought of studying further. Gülcan, thank you for being my family here. I felt your strength and support every step of the way. Gonca, thank you for always being only a Skype call away to share my feelings and thoughts. Cemi, though there isn t much age difference between us, thank you for being my wiser sister whom I can trust and consult on anything. Katja thank you for being my wilder sister encouraging me to step out of my comfort zone. Dear Mohsen and Paul, thank you for all your help and encouragement in my difficult days and thanks for your invaluable friendship. Dear Rogier, Lisette, Hans, oma and late opa, thank you for the initial introduction into the Dutch culture and above all for making me feel part of the family. The times spent with you were always special and fun. Last but not least, canım ailem: Anneciğim, babacığım, Selmoşum Beni her halimle sevdiğiniz ve kabul ettiğiniz için sonsuz teşekkürler. Desteğiniz bana her zaman güç verdi. Sizi çok seviyorum

10 Table of contents LIST OF ABBREVIATIONS xiii 1 GENERAL INTRODUCTION Starting point Existence of legal constraints : Nature of the EU legal order Constitutional or not? Evolution towards further entrenchment of rights Nature of legal constraints : Theoretical definition Identifying legal constraints : Operational definition Methodology The Permanent Safeguard Clause (PSC) Structure of the thesis Part I: Legal constraints flowing from EEC-Turkey Association Law Part II: Legal constraints flowing from the Accession Process Part III: Legal constraints flowing from the constitutional foundations of the Union Summary 30 PART I Legal Constraints flowing from EEC-Turkey Association Law 33 2 ASSOCIATION AS A STEPPING-STONE TO MEMBERSHIP Introduction Defining association Principles of practice and association as a flexible and evolving tool Different models of association Associations based on a Customs Union Associations based on a potential Customs Union The EEA: The Internal Market Association Associations based on a Free Trade Area Conclusion 51

11 X Table of contents 3 THE ANKARA ASSOCIATION LAW Introduction Aims and structure of the Agreement Ankara Association Law The Customs Union Free movement of persons In the Ankara Agreement In the Additional Protocol In the Association Council Decisions Decision 2/ Decision 1/ Decision 3/ Case law of the Court of Justice Establishing the Court s jurisdiction Aims and nature of the standstill clauses Conclusion 107 PART II Legal Constraints Flowing from the Accession Process PROCEDURAL CONSTRAINTS Introduction Past and present Treaty provisions governing enlargement Accession procedure in practice Precedent set by the first enlargement Evolution of the enlargement practice Role of the Commission Role of the Council Role of the European Parliament Practice governing future enlargements Definition and consolidation of negotiation principles The first enlargement as the source of all principles Enlargement to the South: Main principles maintained Enlargement to the North: Main principles confirmed Enlargement to the East: Negotiation principles entrenched Future Enlargements: Respect or deviation from entrenched principles? Conclusion SUBSTANTIVE CONSTRAINTS Introduction The notion of adjustments to the Treaties Meaning and scope of the term adjustment Adjustments to the Treaties v. Adaptations to Acts Adopted by the Institutions 166

12 Table of contents XI Adjustments in previous Accession Treaties Other measures facilitating the full integration of new Member States Transitional measures Quasi-transitional measures Economic and Monetary Union Schengen Safeguard clauses New safeguard clauses The proposed PSCs in the Negotiating Framework for Turkey Changes to the Treaties going beyond mere adjustments Arrangement on fishing rights under the 1972 Act of Accession Other measures in past Acts of Accession going beyond adjustments Conclusion 206 PART III Legal Constraints Flowing from the Constitutional Foundations 211 of the Union 6 CONSTITUTIONAL FOUNDATIONS OF THE UNION AS A CONSTRAINT ON PRIMARY LAW MAKING Introduction Existence of constitutional constraints: Judicial acknowledgment of the very foundations of the Union Opinions 1/91 and 1/ Opinion 1/ Kadi I Implications Substance of constitutional constraints Fundamental freedoms Fundamental freedoms in the Treaties Development of free movement of persons in secondary law Case law on the freedoms Academic opinion Union citizenship: The fundamental status Union citizenship as defined in the Treaties Citizenship Directive Union citizenship in the case law of the Court Union citizenship taking shape: First ground breaking cases Further developments: Beyond discrimination, beyond material scope, beyond internal situations? Core of Union citizenship Fundamental rights 244

13 XII Table of contents Snapshot of recent case law Inception and rise of fundamental rights Constitutionalisation of fundamental rights by inclusion in primary law Role of fundamental rights in the constitutionalisation of the legal order As general principles of Union law As part of the Charter of Fundamental Rights Application of constitutional constraints Are the very foundations impossible to amend? Are the very foundations able to constrain Member States as primary law makers? Conclusion THE PRINCIPLE OF EQUALITY AS PART OF THE CONSTITUTIONAL FOUNDATIONS OF THE UNION: ACASE STUDY Introduction Internal market origin of the principle of non-discrimination Its place in the Treaties Its development in the case law of the Court Embedding equality deeper into Union law Equality as an established general principle of EU law Equality as part of citizenship Expanding scope of equality in the Treaties Equality as enshrined in the Charter Principle of equality of Member States Conclusion GENERAL CONCLUSION 295 SAMENVATTING (SUMMARY IN DUTCH) 305 TABLE OF DOCUMENTS 309 BIBLIOGRAPHY 321 CURRICULUM VITAE 343

14 List of abbreviations AA AG AP BVerGE CCT CEECs CFR CFSP CJEU Coreper EA EAEC EC ECHR ECtHR ECJ ECR ECSC EEA EEC EFTA EU GATT GG GCC OEEC OJ PSC SAA SAP TCN TEU TFEU UK UKTI WTO Ankara Agreement (EEC-Turkey Association Agreement) Advocate General Additional Protocol Bundesverfassungsgericht (German (Federal) Constitutional Court) Common Customs Tariff Central and East European Countries Charter of Fundamental Rights Common Foreign and Security Policy Court of Justice of the European Union Committee of Permanent Representatives Europe Agreement European Atomic Energy Community European Community European Convention on Human Rights and Fundamental Freedoms European Court of Human Rights and Fundamental Freedoms European Court of Justice (also referred to as CJEU) European Court Reports European Coal and Steel Community European Economic Area European Economic Community European Free Trade Association European Union General Agreement on Tariffs and Trade Grundgesetz (Basic Law, i.e. the German Constitution) German (Federal) Constitutional Court (BVerGE) Organisation for European Economic Co-operation Official Journal Permanent Safeguard Clause Stabilisation and Association Agreement Stabilisation and Association Process Third-Country National Treaty on the European Union Treaty on the Functioning of the European Union The United Kingdom The United Kingdom Trade and Investment World Trade Organization

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