EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT FOR WORKERS

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1 Symfiliosi, Cyprus From the SelectedWorks of Nicos Trimikliniotis Winter October, 2009 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT FOR WORKERS Nicos Trimikliniotis Available at:

2 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT FOR WORKERS Nicos Trimikliniotis [Chapter in: P. Minderhoud and N. Trimikliniotis (ed.) Rethinking the Free Movement of Workers: The European Challenges Ahead, Nijmegen, Wolf Legal Publishers, 2009 pp ] 1. Introduction 1 Freedom of movement for workers as set out in article 39 of the EC Treaty requires that any restrictions to free movement are kept by definition exceptional and thus limited in scope. If the principle of free movement for workers is to achieve its goal, which is to enhance integration of the ever closer Union, then the ability to realize workers mobility of is crucial. As such, any derogations, exclusions and exceptional practices based on the territorial application of the acquis or grounds such as public policy, security or public health must be strictly defined in a restrictive manner. In fact, one can trace the historic trend in EU law towards restricting the scope for such exceptions in order to expand the scope of the principle. Integration is deepening and widening across an ever expanding EU, even in these days of global economic turbulence. There are however situations where the distinction between the exception and the norm is not easy to decipher. When norm and exception are so intertwined and interdependent, the grey zones of edges or what is assumed to be the edge become the core. If Agamben (2005:1) is right that current global reality is characterized by a generalized state of exception, then we ought to examine the intersection between norm and exception in the specific EU context: the question of borders become all the more urgent, indeed. The reference here is the edges of the law and politics where there is ambiguous, uncertain, borderline fringe, at the intersection between the legal and the political. 2 The analytical insight into the ambiguity and uncertainty of the the no-man s land between the public law and political fact and between the judicial order and life must move beyond the philosophical and the abstract to the specific legal and political context, if it is to have a bearing on socio-legal and political reality that is currently reshaping the EU. It is for this reason that this chapter examines the parameters that define the scope for such restrictions to free movement of workers and then turns to the case of Cyprus, which is the case study examined. 1 I would like to thank Elspeth Guild and Costas M. Constantinou for their comments on earlier versions to this chapter. 2 Agamben here quotes Fontana (1999: 16). 135

3 NICOS TRIMIKLINIOTIS The EU has developed constitutional arrangements to deal with territories, which are considered to have a special relationship under European Community law due to their exceptional circumstances. Such examples are overseas countries or territories, 3 the outermost regions, 4 the Channel Islands, the Isle of Man, Gibraltar, the Faroe Islands, the Aland Islands and Ceuta and Melilla (see Murray, 2004). The difference between these regimes, whether underdeveloped regions or financial or other services centres, and the situation in Cyprus is that the former have a regulated constitutional link recognised by all sides, whereas in the case of Cyprus, we are dealing with a regulation of a territory of an unrecognised regime. This does not mean that there is no constitutional relationship; in fact there are at least four dimensions of this relationship: firstly, there is a complicated regime regulated by the Treaty of accession and an EU Regulation as regard the territorial aspects of the accession of Cyprus; secondly, Turkish-Cypriots who reside in the north are automatically Union citizens, as they are automatically citizens of the Republic of Cyprus; thirdly, EU acquis-derived rights, which have as Republic of Cyprus as their locus in the de facto divided country are likely to be increasingly influencing the legal, socio-economic and political developments in can be sees as a process of quasi-harmonisation or de facto harmonisation, if Turkey is to be integrated in the European and global economic system. Cyprus is a small island state with a population of about one million, which that was transformed from an exporter of migrants to a migration destination (see Trimikliniotis 1999; Trimikliniotis and Demetriou 2007). It acceded to the EU in May 2004, is in many ways unique in the sense that one of the prime reasons declared for aiming to accede to the EU was to resolve its long-standing political problem that have de facto divided the country for decades. 5 Yet, Cyprus acceded as a divided country: after the Greek-Cypriot overwhelmingly rejected a comprehensive UN plan to reunite the country that would have allowed a bizonal, bicommunal federation 6 to accede as the United Cyprus Republic in the referendum of 24 April The EU was forced to adopt plan B after the failure to resolve the problem before accession: firstly, Protocol 10 to accession treaty was inserted. This protocol stipulates that the application of the acquis shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control (art. 1). It also referred the matter to the Council, which would, acting unanimously on the basis of a proposal from the Commission, define the terms under which the provisions of EU law shall apply 3 Annex II of the EC Treaty lists these territories and includes 13 British overseas countries and territories (e.g. Anguilla, Cayman Islands, Falkland Islands etc), 6 French overseas territories and territorial communities (e.g. New Caledonia and Dependencies, French Polynesia etc); 2 Dutch overseas countries (i.e. Aruba and Netherlands Antilles); 1 Danish i.e. Greenland. For more on these see Murray, 2004: For more on these see Murray 2004, p See Trimikliniotis 2001a; also, see Emerson and Tocci 2002; Tocci For an analysis of the UN plan see Hubert Faustmann & Andrekos Varnava (eds.) The Failure to Reunify Cyprus: The Annan Plan, the Referendums of 2004 and the Aftermath, London: Tauris, forthcoming For the constitutional dimension see my chapter in that book: Annan V: Rethinking the Viability of the Constitutional Arrangement and its Future Importance, p

4 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT OF WORKERS to the line between those areas referred to in Article 1 and the areas in which the Government of the Republic of Cyprus exercises effective control (art. 2). However, Article 3 stipulates that nothing in this Protocol shall preclude measures with a view to promoting the economic development of the areas referred to in Article 1, but such measures shall not affect the application of the acquis under the conditions set out in the Accession Treaty in any other part of the Republic of Cyprus. Moreover, article 4 provides that in the event of a settlement, the Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the adaptations to the terms concerning the accession of Cyprus to the European Union with regard to the Turkish Cypriot Community. Secondly, on the basis of the above protocol, with the accession of Cyprus to the EU there was special regulation, referred to as the Green Line regulation, 7 which regulates problems deriving from the de facto partition of Cyprus 8. The Treaty of Accession and the Green Line Regulation 866/2004 of 29 April 2004 regulates the peculiar soft border of Cyprus/EU under the current situation as long as the de facto partition persists. 9 One scholar aptly refers to the Cypriot states of exception 10 to exemplify the multiple exceptionalism that defines the political-legal order of Cyprus, where one exception generates another. This brings us to the heart of the Cyprus problem, which cuts across the country and naturally intersects with the operation of the acquis in a de facto divided country. Therefore the operation of the principles of free movement for workers is examined by posing the following set of questions: a) To what extent can the abnormal situation of multi-tiered exceptionalism in Cyprus be invoked by the authorities of Cyprus to seek derogations and exclusions in the provisions of rights that derive from the free movement directive and the EU accession treaty? b) If such restrictions are allowed, in what instances are they allowed? c) What are the parameters of the exclusions and what justifications must be offered? 7 Corrigendum to Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 of Protocol 10 to the Act of Accession (OJ L 161, ), doc=304r0866r(01. 8 See ECRI (2005) Third Report on Cyprus, European Commission against Racism and Intolerance, Council of Europe, Strasbourg, 16 May 2006 and Corrigendum to Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 of Protocol 10 to the Act of Accession (OJ L 161, ), smartapi!celexplus!prod!celexnumdoc&lg=en&numdoc=304r0866r(01. 9 This is the division line of Cyprus, which is nothing more than a ceasefire line. When Cyprus acceded to the EU as a divided island the EU decided to make this into a soft border of the EU. See Corrigendum to Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 of Protocol 10 to the Act of Accession (OJ L 161, 30 April 2004), at [ 10 Constantinou 2008, p

5 NICOS TRIMIKLINIOTIS The answers to these questions are illuminating not only for the operation of the acquis in Cyprus but also it serves a good example that examines the parameters of exclusions, derogations and other limitations to the application of the free movement of workers principle and the EU acquis at large. 2. The Restrictions provided for in the EU Directive The EU directive 2004/38 itself provides for conditions that would allow restrictions on the right to freedom of entry. 11 Article 27 of the Directive under the heading Restrictions on the right of entry and the right of residence on the grounds of public policy, public security and public health provides the general principles: 1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. We are dealing with a codification of principles already well developed by the ECJ: restrictions to free movement of persons on the grounds of public policy or public security and public health are strictly limited to the specific circumstances of the individuals concerned: (a) it must be based exclusively on the personal conduct of the individual concerned and (b) it must comply with the principle of proportionality; (c) such conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Of course when it comes to public policy there is a margin of discretion that allows for considerations of the specific circumstances of the individual within the national context this is applied. The nature of public interest and the way this is defined will certainly vary from country to country and from one period to another, as the ECJ declared in the case of Van Duyn 41/ The Court has clarified that although there is no uniformity in the definition of public policy between the various cases allowing for a large margin of discretion to allow for adaptation according to 11 This paper does not deal comprehensively with restrictions, exceptions and derogations, but only with some of these in order to address the key issues in making its case. For a more comprehensive analysis on the subject see Rogers & Scannell 2005; Barnard 2004; Lenaerts & Van Nuffel [1974] ECR

6 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT OF WORKERS the specificities of the national context; 13 however, the discretion afforded is limited by the Directive itself, as the Court insisted that the exercise such discretion within the limits imposed by the treaty (Van Duyn 41/74). Moreover, the notion of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society was made abundantly clear in 1977 in the case of Bouchereau. 14 The concept of EU citizenship, has begun to impinge on the interpretation of general derogations and limitations and conditions laid down by the residence directives, an approach imbued with a strong fundamental rights orientation. As the notion of EU citizenship begins to take shape in the consciousness of the courts and the litigants (or at least their lawyers), a different light may well be cast on the cases interpreting the derogations. 15 As the European Community case law develops, the assertion that the right of freedom of movement for persons is the cornerstone of the principle of European integration lying at the heart of the European Union 16 is becoming more apparent. Free movement of persons is materializing and reshaping the internal character of the Union by demolishing internal obstacles; within this process, free movement for workers is a crucial driving force. Hence, we can trace a trend that is geared towards limiting the operation of exclusions by making stricter the interpretation of any restrictions to the principle of free movement for workers within the EU. The emphasis in literature on the category of citizen rather than worker may miss out some of the dimensions of the worker capacity that are illuminating in the operation of the principles involved; 17 free movement for workers is part of the broader category of free movement of persons but the two are not identical. 18 The same cannot be said about external borders, which are also subject to processes of transformations but these take a more complex and contradictory from as various studies indicate. A number of strict criteria and conditions must be satisfied in order exclude any person, as an individual, from enjoying rights under the free movement for workers acquis: a) Exclusion of Union citizens on the grounds of public policy, public security and public health is based on a narrow definition of the exclusion ground and such decisions must be strictly justified as proportional to the objective they seek to achieve; 13 Case C-268/99 Aldona Malgorzata Jany v. Ministre de l interieur [1975] ECR I-8615, para Bouchereau 30/77 [1977] ECR 1999, para Barnard 2004, p Rogers & Scannell 2005, p. vii. 17 See Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community. For further analysis see the chapter of Elspeth Guild in this volume. 18 See Rogers & Scannell 2005, Chapter 7, p

7 NICOS TRIMIKLINIOTIS b) Such decisions are limited to the personal conduct of the individual concerned: the reasons cannot be general considerations of public interest (such as the fight against drugs or organised crime). 19 Any expulsion or exclusion measures must be justified by demonstrating that the use of such measures must not amount to arbitrary measures against national of other member states thus it will be necessary for member states to demonstrate that it takes genuine and effective measures against its own nationals, in order to combat the conduct justifying expulsion or exclusion. 20 Article 39 of the EU Treaty, Regulation 1612/68 and Directive 2004/38 make abundantly clear that nationality discrimination is to be abolished. a) A number of procedural safeguards (Directive 2004/38, art. 15, 30 and 31) are also put in place as well as measures against expulsions (Directive 2004/38, art. 28). b) When it comes to exclusions related to the territorial scope of the treaties on has to examine the particular arrangements in place on issues such as the jurisdiction of member states which may exclude specific territories, 21 as well as territories with specific status such as special overseas status or limited application of the EU acquis. 22 Overall, EU law provides for a stringent regime governing exclusions and derogations and a number of safeguards to protect free movement of workers, who form the core of the principle free movement of persons in the EU. 3. EU Countries Faced with Soft Borders and Hard Policy Choices Questions relating to the outer borders of the EU are subject to a different logic than the prevailing ideas on free movement for workers within the Union. 23 There is a system of strict border controls based on visa applications and the operation of Schengen, 24 as well as a regime of combating irregular migration once inside the EU. It is a regime that can hardly be considered as soft ; rather as one scholar put it, we have a legal regime of crossing the EU external borders that can be read as clearly stating: No Right to Entry. 25 Simultaneously however, there are processes that are opening up or softening of borders in certain instances. Various studies Ibid., 14-08, p Ibid., 14-08, p They cite the cases of C-348/96 (criminal proceedings) against Calfa [1991] ECR I See Lenaerts & Van Nuffel 2005, p , See Lenaerts & Van Nuffel 2005, p , See Elspeth Guild s chapter in this volume: Free Movement of Workers: From Third Country National to Citizen of the Union. 24 See chapter 7, Border Control, in Peers & Rogers 2003, p See Cholewinski Also see Ryszard Cholewinski s contribution to this volume: Free Movement of Workers and Residence rights. 26 For instance see the collection of essays on soft borders edited by DeBardeleben (2005); Balibar 2004; etc. 140

8 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT OF WORKERS illustrate how the question of the nature of the borders of Europe is becoming ever more important in understanding state processes: notions such as soft borders and hard borders are dilemmas for the enlarged EU. There is empirical support primarily drawing on the eastern European context on a more theoretical level of analysis that the boundary encapsulates the identity of the community. 27 This notion ascribing centrality to the border appears, at least at first sight, like an oxymoron: How could the edge, the border be the centre? The centrality of the border in the current conjuncture seems to be defining new socio-political entities: The term border is extremely rich in significations. One of my hypotheses is that it is undergoing a profound change in meaning. The borders of new sociopolitical entities, in which an attempt is being made to preserve all the functions of the sovereignty of the state, are no longer entirely situated at the outer limit of territories; they are dispersed a little everywhere, wherever the movement of information, people, and things is happening and is controlled-- for example, in cosmopolitan cities. But it is also one of my hypotheses that the zones called peripheral, where secular and religious cultures confront one another, where differences in economic prosperity become more pronounced and strained, constitute the melting pot for the formation of a people (demos), without which there is no citizenship (politeia) in the sense that this term has acquired since antiquity in the democratic tradition. In this sense, border areas zones, countries, and cities are not marginal to the constitution of a public sphere but rather are at the center (Balibar, 2002). The very notion of border needs to be unpacked in what is aptly described as the age of migration. 28 It is often assumed that the term border is a physical or linear border, which was traditionally associated with central repressive and extractive agencies such as immigration, customs and exchange control (Neuwahl, 2005: 24). This, however, is changing: boundaries and borders are historically constructed and their nature and meaning is never static; neither is it constructed necessarily on legal or legalistic grounds. DeBardeleben (2005: 11) reminds us that the European dilemma is between hard borders versus soft borders. The former essentially means strict visa regimes, extensive policing and customs control on cross-border transport of goods creating a closed system and functions as a barrier which manifests a regime with exclusive and rough edges. On the other hand there are measures to soften the borders by loosening visa requirements and allowing free flow of traffic and goods, and an easy exchange of human contact. Yet, there is no uniformity in approaches on the borders of the EU; there are contradictions, mixed signals and highly volatile situations reflecting the contestations within the EU over the issue as well as the uncertainty about the likely shape of the future limits of the EU. 27 This is an illuminating remark by A.P. Cohen, quoted by DeBardeleben 2005 in the introduction to the book (p. 4). 28 See Castle & Miller

9 NICOS TRIMIKLINIOTIS In the context of the politicisation of immigration the question of the border increasingly becomes the centre in terms of political discourses at the EU, 29 and within national politics as, for instance, in the case of Cyprus. 30 Often there are soft borders cutting across countries divided by wars that create new types of immigration problems such as Cyprus, Ireland and others. Moreover, beyond the celebratory dimension that heralds the border changes as good for migrants because they find employment, crucial questions about the transformation patterns, informalisation and the exploitation of migrants at the workplace, are part and parcel of the loosening of borders. What we are dealing with is a wider phenomenon whereby migration must be located within the post-fordist restructuring that is occurring across the European Union and the globe. 31 Now let s turn to the case study of Cyprus which contains some interesting dimensions when it comes tom exceptions and exclusions related to the application of the acquis. 4. The Suspension of the Acquis in the Northern Part of Cyprus: Territorial Application, Exceptions, Derogations and Public Policy Considerations The central issue in the case of Cyprus is the territorial application of the implementation of the Directive given the de facto division of Cyprus. References that restrict the force of the law to the territory in which the Republic of Cyprus operates as the area under the control of the Republic, as provided in the Treaty of Accession, to some extent reflect the status quo, which does not allow for the implementation of the Acquis in the northern part of Cyprus. However, this provision has resulted in problems in the implementation of the principle of free movement, even within the area under the control of the RoC, given the reality of accession to the EU of a divided Cyprus. A European Regulation, referred to as the Green Line regulation, regulates problems deriving from the de facto partition of Cyprus. The reference in Law 7(1)/2007 to the territory under effective control of the Republic of Cyprus in practice allows the authorities to exercise considerable discretion as to whether to allow to EU citizens living the northern (Turkish occupied) territories to exercise their rights under the free movement acquis by refusing to grant them registration certificates. This seems to amount to incorrect transposition of the directive as it may result in unlawful discrimination on the ground of nationality and bureaucratic obstacles relating to residence. It may be justified as regards specific types of benefits, providing that it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. It is however difficult to see how it can be justified for refusal for grant access to any rights under free movement principles. 29 See Lahav See Trimikliniotis & Demetriou 2007, p See Moody 2007; Schierup

10 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT OF WORKERS Elsewhere I have referred to the unique political situation in Cyprus, particularly as regard the exercise of the rights of free movement of workers who are Union citizens and reside in the northern territories, where the Republic of Cyprus Government exercises no effective control. 32 At the same time, the dangers of overstretching the arguments of uniqueness that no norms can fit in the context are apparent: all situations have their uniqueness as well as commonalities with other contexts. The question is how to treat Union citizens and their family members who reside in the northern territories in the areas of the unrecognised TRNC (workers or jobseekers) and seek rights provided by the free movement directive in the southern territories, which are under the effective control of the Republic of Cyprus. The questions to be addressed are: Are they entitled to equal treatment and social advantages Cypriots and other EU citizens? Even if this category of Union citizens do not qualify as frontier workers, is their position and thus their corresponding rights analogous for all intends and purposes to frontier workers? Or, is their situation so fundamentally different, deriving from the wholly unique situation in Cyprus, as one of the many Cypriot states of exception, 33 requiring that they are treated as a separate category? And if so, are there any legal reasons justifying the denial of their right to equal treatment and access to the rights and social advantages as defined by the directive? I have already referred to Protocol 10 to accession treaty: we know that this European Community primary law instrument suspended the application of the acquis in the northern territories. However, we know very little on the specific means and meaning of the suspension of the acquis, when it comes to the exercise of acquis rights for persons residing in the north but claiming these rights from the territories under the control of the Republic of Cyprus, where the acquis does apply. Of particular relevance is the existence of the residence clauses, which have a bearing in defining the scope of equal treatment and the nature of social advantage as defined in the laws (e.g. the cases C-212/05 Hartmann and C-213/05 Geven). 34 A crucial question here is how European Community Law construes the ceasefire line, which cuts across a de facto divided country, as this is depended on the way one construes the legal regime of the breakaway Turkish Republic of Northern Cyprus (TRNC), 35 a regime that remains unrecognised: 36 is it a border, a soft border, a frontier line or merely a default line that acknowledges the status quo 32 See Network on the Free Movement of Workers within the European Union. Report on Cyprus 2007, (Chapter X: Miscellaneous); and Report on Cyprus (Chapter III: Equality of treatment on the basis of nationality-obstacles to free movement, 3. Other obstacles to free movement of workers). 33 Constantinou I have examined elsewhere the legal, conceptual and practical difficulties that generate different kinds of repercussions on free movement of workers arising from the situation in Cyprus. See Trimikliniotis 2008b; 2009a; 2009c. 35 The documents of the Republic of Cyprus refer to these areas territories which are illegally occupied by the Turkish military since The formulation in EU documents and the UN is somehow more neutral referring to areas not under the effective control of the Republic of Cyprus. 36 For more on the legal questions of recognitions see Crawford 2007, p. 81. Also see Benvenisti

11 NICOS TRIMIKLINIOTIS and makes arrangements for the failure of the process of finding a settlement by suspending the implementation of the acquis, as provided in article 1 of the Treaty of Accession of Cyprus to the EU? The references in Law 7(1) of 2007 ( ) 37 to the territorial application of the implementation of the Directive 38 that derive the de facto division of Cyprus are problematic matters for free movement of workers. Section 22 (3) of the said law explicitly confines the implementation of the right to equal treatment, 39 as well as any other rights beyond the right of residence only in relation to Union citizens and the members of their families who reside in the territory in which the Republic of Cyprus exercises effective control. 40 Therefore two questions need to be addressed: a) What is the status of the northern territories as regards the exercise rights that derive from the acquis in the area under the effective control of the Republic? b) Does residence outside the area under the effective control of the Republic justify different treatment, i.e. is the resulting indirect discrimination justifiable under the law? In answering the first question, it has to be pointed out that in some contexts the northern territories are considered as unrecognised, militarily occupied territories 41 and outside the EU, as the ECtHR recognised that Turkey s army exercises effective overall control over that part of the island and that such control [...] entails her responsibility for the policies and actions of the TRNC. 42 In this construction, we are not dealing with a frontier between two EU member countries (e.g. Germany and France etc) but a mere ceasefire line whereby the northern part of the country is under the [illegal] control of a third country. However, matters are far more complicated than that: the territories in the northern part of Cyprus cannot be treated as part of Turkey and have never been treated so by the EU or any other international body; Turkey herself has not even annexed these territories. We are dealing with territories which are part of the EU, but the application of the acquis [is] suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control. 43 Moreover, the accession to the EU of a de facto divided Cyprus 44 is regulated by 37 This is also the case in numerous other laws. 38 Such as section 20 of the law. 39 Under sec. 22 (1). 40 Articles 2 and 20 of Law 7(1)/ See Benvenisti Loizidou v Turkey, ECHR 18 December 1996, 108 ILR 443, (para 56). 43 Article 1, EU Accession Treaty - Protocols on Cyprus, see MOI/pio/pio.nsf/All/DA5EA02B13392A77C2256DC2002B662A?OpenDocument. 44 See ECRI (2005) Third Report on Cyprus, European Commission against Racism and Intolerance, Council of Europe, Strasbourg, 16 May 2006 and Corrigendum to Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 of Protocol 10 to the Act of Accession (OJ L 161, ), 144

12 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT OF WORKERS the Green Line regulation, 45 a fact that has somehow blurred the status of the TRNC : the very existence Green Line Regulation substantiates the argument that the Green Line remains a quasi-border or a soft border of the EU in others. 46 In practice the reference in Law 7(I)/2007 to effective control of the territory has certainly expanded considerably the scope for the authorities discretion as to whether to allow to EU citizens living the northern (occupied) territories has the right to exercise their rights under the directive. In fact, the immigration authorities do not accept applications for obtaining the registration certificate from Union citizens who do not reside in the areas under the effective control of the Republic of Cyprus. 47 Moreover, the practice as regard partners of Union citizens residing in the northern part of Cyprus is to allow them to travel or use the legal ports and airports the first time they enter the country, but to subsequently put them on the stop list once they have entered the territories of the Republic of Cyprus. 48 The interpretation of the Treaty of accession protocol 10 is likely to be problematic under European community Law. There is one recent ECJ case, C-420/07Apostolides v Orams, 49 which dealt with the question of the suspension of the acquis in the northern part of Cyprus, albeit in a context very different and an issue that does not relate directly to free movement of workers. Even though the case pivoted around whether a ruling of a Cypriot court regarding a property dispute in the northern part of Cyprus, where the acquis is suspended, can be executed in the UK, it made some relevant obiter dicta on the question of implementation of the acquis by the Republic of Cyprus as it relates to property rights of Greek-Cypriots in the northern territories. The legal aspects of property question in Cyprus have been primarily dealt with by the ECtHR rather than the ECJ. 50 The case of Apostolides v Orams received consider- 45 Corrigendum to Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 of Protocol 10 to the Act of Accession (OJ L 161, ), doc=304r0866r( See Trimikliniotis 2008a. 47 This is the standard practice of the district migration offices as instructed by the Migration officer (the Director of Population Archive). 48 The author is informed about this from immigration officers of the Republic of Cyprus. 49 The decision was handed on : lang=en&submit=rechercher$docrequire=alldocs&numaff=c420/07&datefs=&datefe=& nomusuel=&domaine=&mots=&resmax= On the question of property rights the leading cases are ECtHR rather than ECJ cases. The case of Loizidou v. Turkey has already been mentioned, which confirmed that property rights are inalienable. The other important case is Cyprus v. Turkey (application no /94, Strasbourg, 10 May 2001 at documentid=697331&portal=hbkm&source=externalbydocnumber&table= ff1fe 2A468ACCBCD1763D4D8149), where the Court held that there had been a continuing violation of Article 8 by reason of the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus. Having regard to that conclusion, the Court found, unanimously, that it was not necessary to examine whether there had been a further violation of that Article by reason of the alleged manipulation of the demographic and cultural environment of the Greek-Cypriot displaced persons homes in northern Cy- 145

13 NICOS TRIMIKLINIOTIS able publicity both in Cyprus and abroad for its serious political repercussions, 51 not for its legal reasoning, which was straightforward and uncontroversial. The plaintiff, a Greek Cypriot owner of property in the Turkish-controlled northern Cyprus, sued two UK nationals who bought his property, after he was evicted from it, and secured a judgment from a Cypriot Court against the defendants to demolish the house they built on his property and to return the property to him. He then sought to have this judgment executed in UK, whereupon the trial court rejected his request. The plaintiff then appealed to the Court of Appeal which, in turn, sought a ruling from the ECJ on the question of property rights of Greek- Cypriots in the northern part of Cyprus and the rights and obligations that derive from that suspension of the application of the acquis communautaire in the areas falling outside the effective control of the Cypriot Government. The ECJ ruled that the suspension of the application of the acquis in the areas outside the control of the Republic of Cyprus does not preclude the application of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to a judgment which is given by a Cypriot court sitting in the southern area of the island but concerns land situated in the north. Taking the approach of the ECJ as reflective of the general approach to the implementation of the acquis we may extend some considerations as collateral repercussions for free movement of workers: a) EU citizens who reside in the northern part of county would arguably be entitled to claim benefits deriving from the EU acquis. For instance it is now apparent that it is not lawful to deprive EU citizens from benefits and rights derived from the Free Movement of Workers directive 2005/38/EC, which are currently denied to EU citizens residing in the northern part of Cyprus based on the laws transposing the directive which are territorially restricted within area under the control of the Republic. Moreover, other rights derived from the acquis cannot be denied on the basis such a residential territorial restrictions. The non-application of the acquis in the north does not nullify the obligation to apply the acquis in the Government-controlled area against residents in the territory that the application of the EU is suspend from claiming rights and benefits in the Government-controlled area. 52 prus. Furthermore, the Court held, by sixteen votes to one, that there had been a continuing violation of Article 1 of Protocol No. 1 by virtue of the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights. 51 See Turkish Cypriot leader feels weak but hopeful on peace talks, Hurriyet Daly News Also see for instance Hatay & Bryant In paragraph 35 the ECJ notes: as the Advocate General observed, in point 35 of her Opinion, provisions in an Act of Accession which permit exceptions to or derogations from rules laid down by the EC Treaty must be interpreted restrictively with reference to the Treaty provisions in question and must be limited to what is absolutely necessary in order to attain its objective (see, by analogy, Case 231/78 Commission v United Kingdom [1979] ECR 1447, paragraph 13; Case 77/82 Peskeloglou [1983] ECR 1085, paragraph 12; Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraph 26; Case C-3/87 146

14 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT OF WORKERS b) The same kind of rights are likely to be claimed and awarded to Turkish- Cypriots residing in the northern part of the country as well as others who have claims against the Republic of Cyprus, otherwise there would be reverse discrimination. c) The principle of the case paves the way for residents in other EU countries to use their national judicial system to seek judgments against persons who have property in Cyprus and in other EU countries and to enforce these judgments in Cyprus. Here we enter a broader issue at stake that is not confined to that particular case. It seems that the way the Republic of Cyprus interprets the territorial stipulation of the suspension of the acquis in the northern part of Cyprus is problematic as it creates a prima facie case of indirect discrimination and the question is whether such discrimination can justified under the law. The residential stipulation to the territory under the control effective control and the current administrative practices flowing from this may discriminate against Union citizens, when compared to the Turkish-Cypriots who reside in the north and other Union citizens who reside in the south. However, Turkish-Cypriots living the north are also subject to the territorial provision when it comes to the provisions of social welfare. On the Equality Body found that the complaint of a Turkish-Cypriot against the Ministry of Finance for rejecting his application for a child benefit was unfounded. 53 The complainant was working in the areas controlled by the government and paid his social insurance contributions, but resided in the north. The law on granting of child benefits states that entitlement is conditional upon the applicant having his/her habitual residence in Cyprus. 54 The Ministry s policy is that no child benefit is paid to Turkish Cypriots residing in the area not under the control of the Government, where the laws of the Republic can have no application. The Cypriot Equality Body found that the Ministry s rejection of the applicant s application was justified and that no discrimination existed, because it was not possible for the authorities to carry out the checks necessary to verify whether the information supplied by the applicant is true or not, pointing out that those Turkish-Cypriots residing in the areas under the control of the government are not subjected to discriminatory treatment in the field of state benefits. The decision also found that the Ministry s policy, of treating habitual residence in Cyprus (required by the law) as meaning residence in the areas controlled by the government, justified. The Equality Body s decision was based on a Court decision regarding the claim of another Turkish-Cypriot for a state benefit whereat the application was also rejected for the same reason and the Supreme Court upheld that rejection. 55 The acquis derived anti-discrimination laws were not seen as taking precedence over the Supreme Court s decision. Agegate [1989] ECR 4459, paragraph 39, and Case C-233/97 KappAhl [1998] ECR I-8069, paragraph 18). 53 File No. A.K.R. 27/ Cyprus/Laws on the Granting of Child Benefit 2002, article 4(1). 55 Mehmet and Meral Birinci v. The Republic of Cyprus (2006), No. 911/2004, issued on

15 NICOS TRIMIKLINIOTIS Art. 22 of the Directive regarding territorial scope explicitly stipulates: The right of residence and the right of permanent residence shall cover the whole territory of the host Member State. Member States may impose territorial restrictions on the right of residence and the right of permanent residence only where the same restrictions apply to their own nationals. In fact, the discrimination caused is manifold: by failing to recognise the rights of Union citizens to free movement, whilst recognising the rights Turkish-Cypriots who reside in the same territories to have access to the rights and benefits of the Republic causes a chain of multiple discrimination that may undermine fundamental rights guaranteed in the acquis: a) It is contrary to the principle of free movement, which has fundamental status, 56 because it creates obstacles to the exercise of this right which contrary to the Directive. The Directive allows for some restrictions if they can be justified within the categories of the exceptions provided under chapter VI (art ), which provides for restrictions on the right of entry and the right of residence on the grounds of public policy, public security or public health. However, no such stated policy has been stipulated in the law that transposes the said directive, nor has there been any other official justification offered for restricting the implementation of the principle of free movement. b) It may be considered to be contrary to the equal treatment principle as it results in indirect discrimination against Union citizens residing in the north: the same restrictions do not apply to Cypriot nationals. Of some relevance here may be the case of Tetyana Tomko v. Republic of Cyprus through the Aliens and Immigration Department: 57 a Ukrainian woman married to a Turkish Cypriot and residing in the northern part of Cyprus won an appeal against the Immigration Department who had rejected her application for renewal of her residency permit, on the grounds that she was residing in the Turkishcontrolled north rather than in the Republic-controlled south and because her marriage was not recognised by the Republic as it was carried out in the north. The Supreme Court found the government s arguments as lacking legal basis and granted her the appeal. Even though the plaintiff, Tetyana Tomko, was a third country national, the same logic by analogy applies to the Union citizens who reside in the northern territories and must be afforded equal treatment to other Union citizens. The test of whether an indirect discrimination is legally justified is provided anti-discrimination acquis under Directives 43/2000 and 78/2000, a provision transposed verbatim by the relevant legislation in Cyprus. 58 Moreover, the transposition of the anti-discrimination acquis includes nationality as one of the grounds due to the inclusion of Protocol Therefore this apparently neutral provision, criterion or practice that puts persons 56 As stipulated in the preamble of Directive 38/ Supreme Court case no. 709/2006, dated The Equal Treatment (Racial or Ethnic Origin) Law No. 59(I) /2004 (31 March 2004); The Equal Treatment in Employment and Occupation of 2004 No. 58 (1)/2004 (31 March 2004); the Combating of Racial and Some Other Forms of Discrimination (Commissioner) Law No. 42(1)/ 2004 (19 March 2004). For details on this see Trimikliniotis & Demetriou See Trimikliniotis & Demetriou

16 EXCEPTIONS, SOFT BORDERS AND FREE MOVEMENT OF WORKERS of certain nationality, 60 or racial or ethnic origin at a particular disadvantage compared Cypriot nationals, can only be justified if it is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. c) There may be good reasons why the Cypriot authorities would choose to be cautious about granting these rights to Union citizens residing in the northern territories 61 given the inherent complications resulting from the operation of the Green line Regulation. 62 The likely justification provided for the restriction in that the current status quo creates a situation that does not allow the implementation of the Acquis in the northern territories and that the issue is one of public policy and public security, under the general rubric of the law or doctrine of necessity given the situation in Cyprus. 63 The scope for limiting acquis derived rights is severely restrictive in scope. In any case, the ECtHR, whose jurisprudence is increasingly more important as an indirect source for general principle 64 for the European Community legal order has ruled on the use of exceptions to restrict human rights: the ECtHR in the case of Aziz vs. The Republic of Cyprus 65 ruled that the doctrine of necessity must be exercised in a manner that does not act as a legal justification for the suspension of the constitutional rights and violates the nucleus of rights or the principle of equality. Therefore this provision, which results in a problematic implementation of the principle of free movement and indirect discrimination within the territory under the effective control of the Republic of Cyprus, 66 is unlikely to 60 Under the equal treatment provisions of Directive 58/2004 (article 24). 61 For instance the reasoning may be an attempt to protect Greek-Cypriot properties from being usurped by Union citizens as a result of the de facto partition following the coup, the invasion and occupation since It aims to combat illegal immigration of third country nationals and to detect and prevent any threat to public security and public policy. See Communication from the Commission COM(2006) 551 final, Brussels, , smartapi!celexplus!prod!celexnumdoc&numdoc=506dc0551&lg=en. 63 See Constantinou 2008; and Trimikliniotis & Demetriou There is strong case that there is a convergence of various European legal orders, both at national and transnational level, see Groussot, Xavier (2006) General Principles of Community Law, Europa Law Publishing, The Hodgendorp Papers 6, Groningen, p , ECHR/no /01 (22 June 2004), Reported at /June/ChamberJudgmentAzizvCyprus htm, accessed on The case is discussed in Trimikliniotis 2008c, available at fundamental_rights/pdf/legnet/cyrep07_en. pdf, accessed on The 2007 Report considered that the relevant provision in Law 7(1)/2007 seems superfluous given the Treaty of Accession and the Green Line Regulation 866/2004 of regulates the peculiar soft border of Cyprus under the current situation as long as the de facto partition persists. This is the division line of Cyprus, which nothing more than a ceasefire line. When Cyprus acceded in the EU as a divided island the EU decided to make this into a soft border of the EU. See Corrigendum to Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 of Protocol 10 to the Act of Accession At OJ L 161, ), CELEXnumdoc&lg=en&numdoc=304R0866R(

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