Turkey s Accession to the European Union

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2 Turkey s Accession to the European Union

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4 Turkey s Accession to the European Union Political and Economic Challenges Edited by Belgin Akçay and Bahri Yilmaz LEXINGTON BOOKS Lanham Boulder New York Toronto Plymouth, UK

5 Published by Lexington Books A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc Forbes Boulevard, Suite 200, Lanham, Maryland Thornbury Road, Plymouth PL6 7PP, United Kingdom Copyright 2013 by Lexington Books All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data Turkey's accession to the European Union : political and economic challenges / edited by Belgin Akçay and Bahri Yilmaz. p. cm. Includes index. ISBN (cloth : alk. paper) ISBN (electronic) (print) 1. European Union Turkey. 2. Europe Economic integration. 3. European Union countries Foreign relations Turkey. 4. Turkey Foreign relations European Union countries. I. Akçay, Belgin. HC T9T ' dc The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences Permanence of Paper for Printed Library Materials, ANSI/NISO Z Printed in the United States of America

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7 Contents Preface Introduction vii ix I: A General Outlook on Turkey-EU Relations 1 1 Turkey-EU Relations from the 1960s to 2012: A Critical Overview 3 Beken Saatçioğlu 2 Europeanization of Turkish Politics and Policies: Past, Present, and Future 25 Atila Eralp and Zerrin Torun 3 The Credibility of EU Human Rights Conditionality: Turkey s Case 45 Zerrin Savaşan II: Economic Relations: Win-Win Process 71 4 Turkey s Accession to the European Union: Temporary and Permanent Derogations from the EU s Economic Acquis? 73 Ronald H. van Ooik and James H. Mathis 5 Constraints Regarding Turkey s Economic Integration into the European Union 97 Belgin Akçay 6 Dynamics of the European Union s Trade Strategy and Its Imperatives on Turkish Trade Policy: Prospects for a Functioning Customs Union 129 M. Sait Akman 7 EU Accession and Central Bank Reform in Turkey 163 Aylin Ege and Erman Aksüt 8 Turkish Agriculture in Case of EU Membership or Nonmember Status 183 Gülcan Eraktan 9 Turkey s External Economic Relations: Does the MENA Region Steal the EU s Role? 213 İdil Bilgiç Alpaslan

8 Contents III: Foreign Policy of Turkey: Looking West and Going East Turkey s Recent Foreign Policy Activism in Its Neighborhood versus Its EU Membership Goal: How Compliant Are Turkey s Regional Ambitions with EU Foreign Policy? 231 Ömer Kurtbağ 11 EU Candidacy and Turkey s Foreign Policy toward the Middle East 255 Defne Günay 12 Europeanization s Time Constraint: The Case of Cyprus 277 Kıvanç Ulusoy 13 Incomplete Peace: Relations between Turkey and Greece 301 Bahri Yılmaz 14 The Future of the European Integration Process and Turkey 317 Sevilay Kahraman About the Contributors 335

9 Preface [B02.0] [B02.1] [B02.2] [B02.3] Although Turkey has a long-lasting aspiration for EU membership and has had candidate status for more than a decade, the topic of EU-Turkey relations has not received the attention it deserves from non-turkish researchers so far, and consequently the international literature on EU- Turkey relations is rather limited. In the light of recent global economic and political challenges for the EU and Turkey, a need has emerged for an interdisciplinary approach to study Turkey-EU relations within the wider international political and economic context. This book aims to provide a timely overview of some of the important issues and debates in the changing context of Europe, the changes in domestic politics and foreign policy in Turkey, and the likely implications of these changes and developments for EU-Turkey relations. Within this framework, the book includes articles emphasizing Turkey s reform process with a view to EU accession, despite the EU s reservations about absorbing Turkey and the eventual decoupling of the Turkish reform process from European integration, as well as searching for alternative forms of cooperation or transitional arrangements that may be possible for Turkey at the time of accession. In this book, different articles have varying degrees of emphasis on the compatibility of Turkey s policies with those of the EU, policy reforms in Europe and the EU impact on the reform process in Turkey, indepth analysis on individual policy areas, the mechanisms of accession conditionality and their effectiveness on compliance in practice, the shortcomings of the performance of Turkey in its accession efforts, the problem-solving power of the EU in some issues, the controversy about Turkey s membership in several member states, blockades in negotiations, and the most controversial issues between Turkey and individual EU member states. The book will provide the reader with an opportunity to combine temporal analyses of EU-Turkey relations with more spatial (geopolitical) analyses.

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11 Introduction [B03.0] [B03.1] [B03.2] The recent literature on EU-Turkey relations has been broadly characterized by analyses of the Turkish reform process with a special emphasis placed on the country s compliance with the requirements of EU membership. The literature has also generated a number of insights into the impact of the on Turkey as a candidate country, thereby linking the effectiveness of accession conditionality to the scope and intensity of compliance in practice. However, from the outset, the Turkish case could hardly be considered as another case of EU enlargement. Granting Turkey the official status of candidate country in December 1999 coincided with the politicization of the EU enlargement policy, also characterized by the prominence of strategic considerations over the liberal democratic norms. This, in turn, has led to the politicization of Turkey s accession process with an emphasis given to the condition of good neighborliness (that candidate states must resolve outstanding border disputes peacefully) alongside democratic and acquis conditionality. Turkey s rapid pace of democratic reform at home, coupled with Ankara s proactive role in fostering Turkish Cypriots acceptance of the Annan Plan throughout 2004, eventually brought about the EU decision to launch accession negotiations with Turkey albeit with higher adaptation costs for Turkey. The year 2004 not only symbolized the completion of the first round of Eastern enlargement to include ten Central and Eastern European countries, but also the end of the deepening and widening consensus in Europe. Indeed, the latter was a Copenhagen condition for enlargement. It reflected the European concerns about the impact that further enlargement might have on the political, institutional, and cultural unity of Europe. While the goal of building a more political Europe was reduced to another revision treaty instead of a Constitutional Treaty by the French and Dutch no-votes, the EU has begun to struggle with an enlargement fatigue. The reluctance to enlarge continues to be voiced today with regard to the possible accession of Turkey. Prospects for Turkey s EU membership are declining in the face of public skepticism in Europe and a waning reform process at home. Enlargement fatigue coupled with the financial and economic crisis has brought issues of identity back to the European agenda. This new context of post-enlargement Europe intensified Turkey s particularity as a candidate state and shifted the debate on Turkey away from the broad patterns of compliance with EU demands toward Turkey s positive

12 Introduction identification with the EU and its constitutive rules. On the European side, the absence of shared identity and of historical responsibility largely explains the EU s reluctance toward Turkey. From the perspective of Turkey, the perceived legitimacy and utility of EU rules and their resonance with domestic political culture are increasingly questioned. Furthermore, in a rapidly changing European and global order, the EU no longer occupies center stage for Turkish foreign policy either. If further enlargement toward Turkey and some neighbors is to continue, the EU will have to adapt its narrative and its membership policy to the newly emerging condition of a multipolar Europe. The rise of Russia and Turkey as regional powers in Europe s neighborhood has increased the role of the European Neighborhood Policy as the new foreign policy of the EU. The EU now has a shared neighborhood with Turkey; this should not be treated as a struggle for power and influence. Nevertheless, Turkey s growing aspirations and presence as a regional power, at a time when accession negotiations have reached an impasse, raises a question of compatibility of its neighborhood policies with those of the EU to the south and to the east. This also requires the EU to develop a new strategic relationship with Turkey, alongside the accession process but not an alternative to it, which might help Ankara over time to seek influence in the shared neighborhood through dialogue and cooperation rather than through competition and divergence. In the light of these changes, the editors and contributors to this book felt that it was about time to work on a more interdisciplinary approach to studying Turkey-EU relations within the wider international political and economic context. The book aims to provide a timely overview of some of the most important issues and debates in the changing context of Europe, the changing context of domestic politics and foreign policy in Turkey, and the likely implications of these changes and developments for EU-Turkey relations. As such, its scope goes beyond the formal context of EU enlargement and accession to cover other possible areas of cooperation and also of competition ranging from economy and trade to energy and agriculture. This will provide the reader with an opportunity to combine temporal analyses of EU-Turkey relations with more spatial (geopolitical) analyses. The book is divided into three distinct thematic parts. The first part begins with a critical overview of the historical evolution of EU-Turkey relations from the 1960s to Beken Saatçioğlu shows how several hurdles on both sides have combined to make Turkey s accession process exceptionally difficult and prolonged. Then, Atila Eralp and Zerrin Torun s chapter provides an analysis of Europeanization of Turkish politics and policies and evaluates past and present of the changing Turkish policies. This chapter also addresses the political dimension of EU-Turkey relations and seeks to explore what went wrong in the Turkish reform process in the context of EU accession in the period spanning 2002 to [B03.3] [B03.4] [B03.5]

13 Introduction [B03.6] [B03.7] [B03.8] Zerrin Savaşan shows how the EU has promoted human rights changes in Turkey, and as a response, what Turkey did to change and to improve the conditions of human rights in the country. Part II provides an overview of the economic dimension of EU-Turkey relations in terms of whether and to what extent it can be conceptualized as a win-win process. The first chapter in this part is by Ronald van Ooik and James H. Mathis. They address the challenge of compatibility of Turkey with the EU s economic acquis, which might lead to a number of derogations or transitional arrangements for Turkey at the time of accession. Then, in Belgin Akçay s chapter, we see how certain artificial obstructions and restrictions since 1999 have delayed the process of economic integration of Turkey into the EU. This chapter is followed by Sait Akman s discussions on the implications of the new trade strategy of the EU on the functioning of the customs union with Turkey, which inevitably raises a question of compatibility of trade policies. In their chapter on the central banking system of the EU, Aylin Ege and Erman Aksüt show that reforming the Central Bank of the Republic of Turkey (CBRT) in accordance with EU legislation is one of the requirements for the alignment of Turkey with Chapter 17 of the EU acquis, Economic and Monetary Policy. Gülcan Eraktan raises the issue of compatibility of the recent Common Agricultural Policy reforms in an enlarged EU with the needs of Turkish agriculture. At the end of this part, İdil Bilgiç Alpaslan substantiates the challenge of trade compatibility between the EU and Turkey further by examining whether the recent growth in the role of the Middle East and North Africa (MENA) in Turkey s external economic relations will be sustainable given the EU s declining role. Part III of the book is concerned with Turkish foreign policy in a bilateral and regional context, which, as a result, have significant implications for its relations with the EU. Ömer Kurtbağ considers whether or not Turkey s recent activism in its neighborhood has been consistent with its long-established goal of EU membership, and he seeks the key reasons behind the so-called Turkish drift away from Europeanization. Defne Günay explains the impact of Turkey s EU process on its foreign policy toward the Middle East and highlights the gaps in literature on the Europeanization of foreign policies of the candidate countries. As Kıvanç Ulusoy shows, the problem-solving impact of the EU on the Cyprus question is constrained by time, leading to an assumption that the EU s impact beyond its borders is far from being structural but is actually highly conjunctural in nature. Bahri Yılmaz shows why and how the past and present relations between Turkey and Greece can still be regarded as a case of unfinished peace. The book ends with a discussion of the role and place of Turkey in the future of the European integration process. In Sevilay Kahraman s chapter we see that Turkey, a country that has long been considered as a challenge to EU widening (enlargement), is becoming increasingly im-

14 Introduction portant for the internal and external aspects of European identity-building, both of which justify a debate on the relevance and role of Turkey within competing visions of Europe. July 20, 2012, Ankara [B03.9]

15 I A General Outlook on Turkey-EU Relations

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17 ONE Turkey-EU Relations from the 1960s to 2012 A Critical Overview Beken Saatçioğlu 1 [1.0] Turkey s European vocation goes back to the foundation of the modern Turkish republic. As Turkey transitioned from Ottoman rule, modernizing reforms underpinned the new republican regime. Since modernization was considered synonymous with westernization/europeanization, these efforts triggered a process of adaptation to Western liberal norms. In the postwar period, this was pursued alongside a Western-oriented foreign policy, as evident in Turkey s early memberships in key European organizations such as the OECD (1948), the Council of Europe (1949), and NATO (1952). The country s unwavering commitment to join the European Union (then the European Community) constituted the backbone of this policy. [1.1] From the start, several dynamics critically impacted Turkey s path toward integration in the EU. On the one hand, official EU admission criteria have toughened since Turkey first applied for membership, making its accession harder than had formerly been the case for the other EU candidates. This raised the need to adopt wide-ranging, substantive domestic reforms required for membership. On the other hand, Turkey s membership prospects have been shaken by factors originating from Europe, such as the EU s reservations about absorbing Turkey and mounting political controversy about Turkish accession in several member states and among the European public at large.

18 Beken Saatçioğlu Turkey s relations with the EU reflect the ongoing clash between the country s inherent desire to be recognized as part of the European community of states and the many obstacles that complicate this objective. The purpose of this chapter is to review Turkey-EU relations from the Association Agreement onward. The key issues and political developments (in both Europe and Turkey) that have historically defined these relations will be analyzed. [1.2] The Early Years: TURKEY-EU RELATIONS Turkey s formal efforts to join the EU started with its 1959 application for membership in the European Communities following the formation of the European Economic Community (EEC). The country became an associate member of EEC via signing the Ankara (Association) Agreement on 12 September The agreement was mainly an economic instrument intended to improve Turkey s economic performance and ensure its integration into the Community. Turkey s economic integration was envisaged as a three-stage process that included a five-year preparatory phase, a transition phase, and a final period. A customs union would be established by the end of the transition period that was launched by the Additional Protocol to the Agreement (1970). The Protocol entered into force in 1973, and Turkey thus committed to abolishing customs duties on European industrial exports and adopting the European Community s Common Customs Tariff (CCT) regarding third countries. A transition period of twelve years was foreseen for the removal of Turkish tariffs on industrial goods, along with a twenty-two-year phase for lifting tariffs on vulnerable industrial sectors. In return, the European Community (EC) would abolish customs duties on industrial products imported from Turkey (with the exception of machine-woven carpets, cotton textiles, and cotton yarns). Petroleum goods would undergo tariff reductions within quota limits. However, the 1973 oil crisis and the global economic recession of the mid-1970s caused problems for the implementation of the transitional stage. On the one hand, the EC was unable to establish free movement of labor with Turkey as foreseen by the Ankara Agreement. On the other, it significantly decreased the preferences it granted to Turkey (as part of its concessions to developing countries). Additionally, quotas were imposed on Turkish textile exports. For its turn, Turkey could reduce tariffs only twice (1973 and 1976) without adjusting to the CCT. Its request for an economic aid package was rejected by the EC, and in 1978, Turkey felt constrained to freeze the terms of the Agreement (Article 60 of the Additional Protocol) (Balkır 2010, 26). In addition, EU financial assistance to [1.3] [1.4] [1.5] [1.6]

19 Turkey-EU Relations from the 1960s to 2012 Turkey was often inadequate, given that Turkey was excluded from the financial assistance mechanisms designed for EU member states. Thus, at least until its 1999 EU candidacy, Turkey generally received little financial aid due to the EU s reluctance to fulfill its financial obligations (Balkır 2010, 28 30). [1.7] Beyond tying Turkey to EEC economically, the Ankara Agreement vaguely committed EEC member states to fully integrating Turkey into the Community (Uğur 2003, ). The only article that referred to the possibility of Turkish membership, Article 28, discussed membership not as an outcome that would automatically result from Turkey s fulfillment of its treaty obligations but as an issue to be possibly examined by the contracting parties in the event of such fulfillment. 2 Still, the Article was significant since it initially confirmed Turkey s eligibility for full membership. [1.8] Yet, subsequent political developments cast doubt on Turkey s membership prospects irrespective of its adoption of the conditions arising from the Association Agreement. The military coup of March 1971, Turkey s military intervention in Cyprus in 1974, and rising economic and political instability in the country constituted worrying developments for EC member states. The strained EC-Turkey relations reached their peak when civilian democratic regime was replaced by military rule in September Consequently, the Community froze ties with Turkey and announced that the reactivation of the Association Agreement would be conditional on Turkey s improvement of its human rights record. 3 Yet, the EC also enlarged to formerly authoritarian countries (Greece, Spain, and Portugal) during the same period. [1.9] The fact that Turkey would not be considered for membership in the short term became official when the European Commission rejected Turkey s 1987 membership application. In a 1989 Opinion, the Commission justified the rejection by arguing that it would not consider any new applications before finalizing the integration of its new member states and the Single Market (Müftüler-Baç and McLaren 2003, 21). More specifically, it emphasized that Turkey s membership would raise significant problems for the Community: [1.10] In the particular case of Turkey [emphasis added], these two aspects [Turkey s capability to bear the constraints of membership and the EU s ability to absorb Turkey] are all the more significant in that Turkey is a large country it has a greater geographical area and will eventually have bigger population than any Community Member State and its general level of development is substantially lower than the European average (European Commission 1989, para. 6). [1.11] Hence, the Community signaled that Turkey s membership issue was bigger than its domestic reform problems, as it clearly also depended on the EC s readiness to integrate it as a member state. The Opinion was

20 Beken Saatçioğlu thus seen as the first major signal that led many in Turkey to doubt the likelihood of EC accession irrespective of democratic progress (Müftüler- Baç and McLaren 2003, 21). Suspicions intensified in the post Cold War period as the EC/EU committed to enlarging to the formerly communist regimes of Central and Eastern Europe (CEE) out of a sense of moral duty. The EU s moral commitment to help these countries return to Europe 4 and thus end the ideological division of the European continent (European Council 1989) formed the basis of Eastern enlargement, while Turkey s EU candidacy was left pending. Subsequent European Council decisions reflected this differential approach even as the EU formulated objective membership criteria. The June 1993 Copenhagen Council conclusions established the official accession conditions yet also noted that the associated countries in Central and Eastern Europe that so desire shall become [EU] members provided that they fulfill these (European Council 1993, 13). Hence, it was signaled that the conditional membership perspective was primarily directed at CEE. In contrast, regarding Turkey, the EU s immediate objective was not EU accession per se, but the furthering of economic relations via the establishment of an EC-Turkey Customs Union (European Council 1993, 12). The entry into force of the Customs Union in January 1996 injected an air of optimism about membership into the Turkish government. The ruling True Path Party (DYP) leader and Prime Minister Tansu Çiller presented the agreement as a prelude to Turkey s EU membership. The government s enthusiasm quickly faded, however, as it soon became clear that the EU did not consider the Customs Union as a step toward Turkish accession. At least two political developments following the agreement s signing caught the EU s criticism and delayed discussion of Turkish membership in EU circles. The first was the sentencing to prison of Kurdish MPs for separatist Kurdish propaganda in late 1994, which led the European Parliament to delay the ratification of the Customs Union. This became an early signal that the EU would push Turkey to solve its democracy problems as a condition for closer ties. The second occurred when Turkey landed its military forces on the Kardak/Imia islets on the Aegean Sea in January 1996 as part of a confrontation with Greece. The EU s response was fairly critical and reflected its solidarity with Greece as a member state (Uğur 2003, 167). Consequently, it became clear that Turkey s disputes with its neighbors would complicate its membership not only due to the complexity of the issues at hand but also to the EU s potentially pro-greek political stance. The timing of the Customs Union agreement constituted a further sign that the treaty was not motivated by the EU s desire to fully integrate Turkey. In retrospect, its signing can be considered as the EU s political move to clear the way for Cyprus s EU membership rather than a step [1.12] [1.13] [1.14] [1.15]

21 Turkey-EU Relations from the 1960s to 2012 toward Turkish accession. Shortly before signing the agreement with Turkey, EU leaders struck a deal with Greece (which had hitherto vetoed the Turkey-EC Customs Union along with the provision of 600 million ecus of EU financial aid to Turkey) promising to open accession negotiations with Cyprus in exchange for Greece s approval of the Customs Union with Turkey (Agence France Presse 1995). [1.16] Still, it was the EU s December 1997 Luxembourg Summit that most explicitly signaled that Turkey would be excluded from the membership queue in the short term. Luxembourg failed to recognize Turkey as a membership candidate, while acknowledging the candidacy of ten Central and Eastern European countries (CEECs) plus Cyprus. The decision reflected the Commission s earlier Agenda 2000 report (July 1997), which evaluated the progress of all EU applicants in meeting the membership criteria except Turkey. In contrast to the eleven candidates 5 that were offered an enhanced pre-accession strategy, Turkey was merely given a European strategy consisting of far less ambitious cooperation measures (European Council 1997, para. 32). Consequently, even Luxembourg s simultaneous adoption of a meritocratic, differentiated approach to accession (European Council 1997, paras. 10, 26) or recognition of Turkey s eligibility for EU accession failed to encourage Turkey in its efforts to seek membership. [1.17] In response to Luxembourg, the Turkish government suspended all political dialogue with the EU and refused to attend the European Conference (March 1998) organized with the candidate states. Furthermore, the government announced that it would not negotiate with the EU the political issues EU leaders had presented as justification for rejecting Turkey s candidacy (Turkey s democracy and human rights problems, dispute with Greece, and the Cyprus problem) until Turkey was treated on an equal basis with the other candidates. 6 In essence, the government s reaction was fed by perceptions that Turkey was treated unfairly in Luxembourg compared to the formerly communist CEECs, which lagged behind economically. 7 Indeed, Prime Minister Mesut Yılmaz went so far as to accuse the EU of attempting to construct a new cultural Berlin wall to discriminate against Muslim Turkey (New York Times 1997). [1.18] But there was another aspect of Luxembourg that crucially contributed to the government s decision to reevaluate its relations with the EU, and that was the Greek veto. In Luxembourg, Turkish candidacy was blocked by Greece, which insisted on linking membership to the resolution of Greco-Turkish disputes (including Cyprus). Such linkage had been rejected by Turkey from the outset. 8 But Greece s involvement in the controversy via exercising its veto power worsened the situation, since the EU was now seen as giving in to Greek pressure rather than following the objective principles embedded in the Copenhagen criteria (Uğur 2003, ).

22 Beken Saatçioğlu Yet, Turkey s initial reaction quickly gave way to the normalization of relations with the EU. Notwithstanding its failure to attend the European Conference and the EU-Turkish Association Council in May 1998, the Turkish government soon went back to the negotiation table with the EU to discuss the European strategy for Turkey. On the EU s side, the discouraging tone regarding Turkey s accession simultaneously softened, which additionally helped ameliorate the strained relations. The June 1998 Cardiff European Council proved considerably more welcoming of Turkey s membership prospects than Luxembourg. At the summit, member states committed to taking forward the European strategy to prepare Turkey for membership (European Council 1998, para. 68). In this context, the need to harmonize Turkey s legislation and practice with the EU s acquis was recognized as a crucial matter (European Council 1998, para. 68). The Commission s subsequent, first report on Turkey s progress towards accession (November 1998) discussed this further, along with Turkey s needed domestic reforms. Although neither the Cardiff Council conclusions nor the Commission s report contained deadlines or a specific road map for the evolution of Turkey-EU relations or Turkey s adjustment to the membership criteria, it was clear that Turkey was now being evaluated as a potential EU candidate. Yet, Turkey would have to wait for another year before earning official EU candidacy. [1.19] [1.20] FROM LUXEMBOURG TO HELSINKI: A CRITICAL EVALUATION The negative post-luxembourg trend in Turkey-EU relations was almost entirely reversed following the EU s December 1999 Helsinki Summit. The Helsinki Council declared Turkey s EU candidacy on the basis of the same criteria as applied to the other candidate States (European Council 1999, para. 12). As a result of candidacy, Turkey would benefit from a pre-accession strategy, including an enhanced political dialogue on democracy problems and political issues (i.e., disputes with Greece, Cyprus), and an accession partnership specifying the reform priorities required for membership (European Council 1999, para. 12). Although Helsinki fell short of formulating a timeline for Turkey s accession negotiations, the recognition of candidacy alone was significant for officially placing Turkey in the membership queue, thus helping resolve the anchor-credibility dilemma in Turkish-EU relations (Uğur 1999). Consequently, the decision was welcomed in Turkey as a watershed event, finally signaling the EU s resolve to integrate it, and a major foreign policy success for Turkey. Yet, close analysis of Helsinki suggests that although a positive development, the candidacy announcement did not entirely restore the EU s credibility in promising Turkey membership contingent on the fulfill- [1.21] [1.22] [1.23]

23 Turkey-EU Relations from the 1960s to 2012 ment of the official accession criteria. In retrospect, both the EU s Turkey shift from Luxembourg to Helsinki and the accession conditions formulated in Helsinki were politically loaded. Hence, notwithstanding the EU s reversal of Luxembourg, Helsinki implied that just like the candidacy decision, membership too would be defined as much by internal EU politics as Turkey s independent progress in meeting the membership criteria. Thus, the Helsinki announcement came as a sweetener after Luxembourg without fully generating an objectively oriented membership process for Turkey. [1.24] For one thing, politics crucially influenced the EU s candidacy decision in Helsinki. Turkey s democratic progress from Luxembourg to Helsinki was indeed negligible, thereby making democratization irrelevant for the candidacy announcement. In contrast, political factors in Europe had shifted considerably between Luxembourg and Helsinki (Müftüler- Baç and McLaren 2003, 21 26). The two EU member states that had opposed Turkey s candidacy in Luxembourg (Greece and Germany) adopted a favorable position toward Turkey in Helsinki due, in large part, to a change in their governments and policy preferences. In Greece, Foreign Minister George Papandreou s moderate approach to Turkey was reinforced by the Greco-Turkish rapprochement following Greek assistance in response to the August 1999 earthquake in Turkey. Additionally, the Greek leadership increasingly realized that its bargaining position in settling its bilateral disputes with Turkey would be weakened if Turkey were left out of the EU accession process (Uğur 2003, 171). In Germany, Gerhard Schröder s coming to power reversed the government s previously oppositional Turkey position as Schröder emerged as the champion of Turkey s membership cause within the EU. These political developments cleared the way for Turkish candidacy in Helsinki. [1.25] Second, Helsinki conclusions closely tied Turkey s membership to political factors. Alongside highlighting compliance with the political membership criteria and the acquis for Turkey s accession, Helsinki heavily emphasized political matters that could independently complicate membership. Accordingly, Turkey was asked to contribute to the settlement of the Cyprus problem and resolve its outstanding border disputes (with the help of the International Court of Justice [ICJ], if necessary) (European Council 1999, paras. 4, 9a, 12). The controversy over these conditions was intensified by the fact that no Cyprus criterion was attached to Greek Cyprus s EU membership (European Council 1999, para. 9b). Indeed, Prime Minister Ecevit agreed to the Cyprus reference in the Helsinki conclusions only after a last-minute visit from the EU s high representative for common foreign and security policy, Javier Solana (McLaren 2000, 120). [1.26] These aspects of Helsinki can be interpreted as early signals that Turkey s membership would be subject to EU politics and other issues reaching beyond the country s simple fulfillment of the membership criteria as

24 Beken Saatçioğlu defined in Copenhagen in Indeed, subsequent developments confirmed this trend, as Turkey came closer to beginning EU accession negotiations. THE POST-HELSINKI PERIOD: THE BUMPY ROAD TO MEMBERSHIP NEGOTIATIONS Candidacy Status and the Launching of the EU Accession Process Despite its controversial/political aspects, Helsinki constitutes a turning point in EU-Turkey relations. In sharp contrast to the pre-helsinki period, the candidacy carrot boosted the Turkish political elite s confidence in the accession process and triggered a process of Europeanization. 9 As the prospect of membership materialized for the first time, so did the need to reform in order to realize EU accession. Thus, soon after Helsinki, divisions emerged among political parties regarding the content and implications of the required domestic reforms. 10 Realignments formed along a pro-eu versus anti-eu axis (Öniş 2003, 16 23). The rightwing Motherland Party (ANAP) led the pro-eu coalition, while the anti- EU coalition included the Nationalist Movement Party (MHP), nationalist elements within the Democratic Left Party (DSP), and the military. Still, despite their reservations about certain EU reforms, these forces remained united in their principled commitment to the EU membership goal. The EU s reform demands were made explicit in Turkey s first Accession Partnership (AP) document, issued in March The document listed specific short- and medium-term reform priorities Turkey would be expected to address. Among these, those that were seen to impinge upon sensitive areas of Turkish politics triggered immediate reaction in political circles, particularly among the nationalist members of the DSP- MHP-ANAP coalition government. Priorities such as the resolution of the Cyprus dispute 11 and bilateral matters (with the help of the ICJ, if necessary, as decided in Helsinki), as well as certain domestic political reforms (e.g., abolition of the death penalty, removal of restrictions to education, and broadcasting in minority languages), caused resistance within the government. The leading DSP vehemently criticized the Cyprus condition, arguing that there could be no settlement that would disregard the sovereignty of Northern Cyprus and that allowing Cyprus to join the EU in the absence of a settlement would violate international law. DSP leader and Prime Minister Ecevit even argued that Turkey would otherwise [1.27] [1.28] [1.29] [1.30] need to reconsider its relations with the EU. 12 [1.31] Critical voices were also heard within the MHP, especially regarding the death penalty and the expansion of cultural rights for the Kurdish minority. These two matters were opposed due to their implications for

25 Turkey-EU Relations from the 1960s to 2012 the conviction of Kurdistan Workers Party (PKK) leader Öcalan and the threats they could pose for national unity and territorial integrity (linked to a potential secession of Turkey s Kurdish-populated regions). [1.32] With so much opposition to EU reforms, it is no surprise that the government s March 2001 National Program for the Adoption of the Acquis (NPAA), issued in response to the AP, failed to sufficiently address these sensitive reform areas. 13 Nonetheless, the subsequent period saw the passage of critical democratic measures. Crucially significant among these were the October 2001 constitutional amendments and the August 2002 EU harmonization package. The 2001 changes concerned thirtyfour articles of the constitution, constituting as such the most comprehensive constitutional package to date. Measures affected key areas such as fundamental political freedoms, the reduction of the military s political influence (via changes in the National Security Council), abolition of the death penalty, and the use of minority languages. 14 The constitutional amendments were later incorporated into legislation via adopting EU harmonization laws. Among these, the August 2002 package included the most far-reaching reforms, as it abolished the death penalty and recognized the right of education and broadcasting in minority languages. [1.33] Needless to say, the adoption of these key reforms was enabled by the post-helsinki shift in Turkish politics toward a genuinely pro-active, pro-eu coalition (Öniş 2003, 22). In this respect, the role of interest associations, notably Turkish Businessmen and Industrialists Association (TÜSIAD) and the Economic Development Foundation (İKV) was crucial. These organizations effectively pressured the government for democratic reforms required for EU membership. The umbrella organization known as the Movement for Europe 2002 (Avrupa Hareketi 2002) led by İKV unprecedentedly mobilized as many as 175 civil society organizations and lobbied political actors for EU adjustment during the summer of [1.34] These democratic initiatives did not go unnoticed in EU circles. Already in December 2001, the Laeken European Council recognized Turkey s reform progress as a positive development on the way to opening accession negotiations (European Council 2001, para. 12). The Seville (June 2002) and Brussels councils (October 2002) reflected an even more encouraging tone. Reform measures were welcomed as steps that would advance membership on the basis of the same criteria applied to the other candidates (European Council 2002b, para. 6). More important, further discussion of Turkish accession was tied to a deadline, as the December 2002 Copenhagen Council would decide on the next stage of Turkey s candidature (European Council 2002c, para. 25). This announcement further boosted Turkey s pro-eu policy. Hence, in the pre-copenhagen period and after, it would fall upon the incoming Justice and Development Party (AKP) government to move the EU accession process forward.

26 Beken Saatçioğlu From Copenhagen to Brussels: The Decision of Membership Negotiations The EU s critical Copenhagen Summit followed AKP s coming to power in the November 2002 parliamentary elections. Unlike its predecessor Islamist parties (from which it originated in 2001), AKP adopted the agenda of conservative democracy reminiscent of the ideology of Europe s Christian democratic parties. This consisted of the execution of liberal domestic reforms alongside the pursuit of EU membership as a foreign policy goal. Indeed, immediately upon assuming office, AKP leader Recep Tayyip Erdoğan toured European capitals and lobbied EU leaders for a decision specifying a prospective date for beginning EU membership negotiations. He also pledged that Turkey s reform process would continue regardless of what the EU decides in Copenhagen (Turkish Daily News 2002). Hence, AKP quickly emerged as the leading member of Turkey s pro-eu coalition, a policy move partly triggered by the party s dependence on the EU course as a necessary safeguard for protecting [its] own identity against the secular state establishment (Öniş 2006, 124). Consequently, despite initial disappointment over the Copenhagen Council conclusions (which merely decided on a review date, rather than an actual date for beginning accession negotiations), 15 the AKP government held on to its reform agenda. Hence, the golden age of Europeanization (Öniş 2009, 23), which had started in summer 2002 (i.e., with the passage of the critical August 2002 package by the DSP-MHP-ANAP government), continued at full speed. Several harmonization packages were passed in view of earning a favorable outcome at the December 2004 Brussels Summit. By the summer of 2004, seven major reform packages (two of which comprised constitutional changes) had been adopted, and a new penal code was adopted in September These legislative initiatives directly addressed the EU s political criteria and concerned, among other issues, (1) the expansion of political freedoms (notably via limiting the ban to participate in parliamentary elections and gain membership in political parties to persons convicted of terror acts, thus allowing previously convicted Erdoğan to assume the prime ministry); (2) the right of retrial in civil and criminal cases that the European Court of Human Rights (ECtHR) finds contrary to the European Convention on Human Rights; (3) civilianization of politics via further changes in the National Security Council; and [1.35] [1.36] [1.37] [1.38] [1.39] (4) the abolition of the death penalty in all cases. 16 [1.40] As was the case with earlier reforms, these developments were closely monitored by the EU. In a November 2003 paper, the Commission emphasized the need to implement passed democratic legislation. It also noted that it would issue a report and recommendation to assess Turkey s political compliance, which would provide the basis of the Decem-

27 Turkey-EU Relations from the 1960s to 2012 ber 2004 European Council decision concerning the opening of membership talks (European Commission 2003). [1.41] In line with this approach, the Commission decided, in its October 2004 recommendation, that Turkey sufficiently fulfills the political criteria and recommended the launching of accession negotiations (European Commission 2004a, 3). By recommending the opening of membership talks, the Commission not only advanced Turkey s membership process but also fulfilled the EU s earlier commitment to Turkey, which had tied negotiations to political compliance. Hence, the announcement constituted a powerful signal not only for Turkey s membership prospects, but also and more broadly, the consistency of EU membership conditionality. [1.42] However, as far as Turkey s accession is ultimately concerned, the Commission s recommendation also noted that negotiations progress would depend on the EU s capacity to absorb Turkey, in addition to the country s convergence with the EU (European Commission 2004a, 8). This was the EU s first explicit admission that EU absorption capacity would directly bear upon Turkey s negotiation process. Clearly, as Turkey s negotiations approached, the EU felt constrained to consider the concrete implications of Turkey s membership for its policies, budget, and institutions. [1.43] In this context, the Commission s detailed assessment addressing the potential impacts of Turkey s accession on the EU (which was issued on the same day as the recommendation) is significant in admitting the special nature of Turkey s membership: Turkey s accession would be different from previous enlargements because of the combined impact of Turkey s population, size, geographical location, economic security and military potential, as well as cultural and religious characteristics (European Commission 2004b, 4). Specifically, the Commission explained that the budgetary aspects of Turkey s EU entry would be substantial, as Turkey would qualify for significant support from the structural and cohesion funds over a long period of time (European Commission 2004b, 5). Expected further Turkish immigration to the EU (in the event of membership) was discussed as another difficult aspect and permanent safeguard clauses were thus envisaged to avoid serious disturbances on the EU labor market (European Commission 2004b, 5). [1.44] In addition to absorption capacity related dimensions of Turkey s membership, ongoing political issues such as the Cyprus question were also emphasized as key considerations in the accession process. 17 While the EU s insistence on this condition was not new, the fact that it was reiterated on the eve of the Brussels Summit came as an additional factor signaling that accession would be highly difficult if not impossible despite starting the membership talks. [1.45] Against this background, EU-wide debates about the desirability of Turkish accession (regardless of Turkey s fulfillment of the membership

28 Beken Saatçioğlu criteria) intensified during the months leading to the critical Brussels Summit. Reservations were expressed on a variety of grounds ranging from the more material/financial to the identity aspects of Turkey s EU admission and were mostly but not exclusively expressed by rightwing, pro-integrationist European forces. It would be fair to say that among European politicians, Christian Democratic Union (CDU) leader Angela Merkel led the opposition to Turkey s membership, as she lobbied EU heads of state and government for their inclusion of a reference to the idea of privileged partnership in the upcoming Brussels Summit conclusions. In an October 2004 article, Merkel explained: A Privileged Partnership between the EU and Turkey is more valuable than an underprivileged Turkish membership in the EU for both Turkey and the EU (BBC Monitoring Europe 2004). Her initiative proved especially popular among right-wing politicians such as Austrian chancellor Wolfgang Schüssel and then French president Nicolas Sarkozy. But concerns about Turkey were raised even within the ranks of the Commission (though not to the extent of openly advocating privileged partnership). Outgoing Commission President Romano Prodi conceded that Turkey s size, economy, and makeup necessitated clear precautions to prevent Turkey s integration from weakening the structure we have been building for more than 50 years (Guardian 2004a). Similarly, the then incoming enlargement commissioner Olli Rehn recognized member states reservations and announced, ahead of the Brussels Summit, that he would seek a special provision to allow the EU to indefinitely close its borders to Turkish immigrant workers in the event of Turkish accession (Australian 2004). Concerns were also widely expressed about Turkey s identity, which was perceived to be incompatible with European culture. For example, in a September 2004 letter to the commissioners, Franz Fischler (the then Austrian Commissioner responsible for Common Agricultural Policy) argued that Turkey is far more oriental than European and that there were suspicions about its long-term secular and democratic credentials, and warned about Islamic fundamentalism in Turkey (Times 2004). In even more dramatic language, Dutch European Commissioner Frits Bolkestein warned of the Islamization of Europe and noted that if Turkey enters the EU, the relief of Vienna in 1683 will have been in vain (Guardian 2004b). Hence, based on these wide-ranging reservations, it is no surprise that the December 2004 Brussels Council formulated exceptionally difficult terms guiding Turkey s EU accession. While agreeing to launch accession talks with Turkey, EU leaders tied Turkey s membership to unprecedented conditions conditions that had not been imposed before on any EU candidate. Thus, on the one hand, the EU rewarded Turkey for its progress in meeting the political criteria (which is the official prerequisite for opening membership talks with EU applicants). 18 On the other, it [1.46] [1.47] [1.48]

29 Turkey-EU Relations from the 1960s to 2012 formulated the accession process in such a way that the Turkey concerns of member states (as well as the Commission, as stated above) would also be sufficiently accommodated. [1.49] Perhaps the most controversial aspect of the Brussels Conclusions was the reference to the negotiations open-endedness : [1.50] These negotiations are an open-ended process, the outcome of which cannot be guaranteed beforehand. While taking account of all Copenhagen criteria, if the Candidate State is not in a position to assume in full all the obligations of membership it must be ensured that the Candidate State concerned is fully anchored in the European structures through the strongest possible bond (European Council 2004, 7). [1.51] Although EU leaders also agreed that the shared objective of the negotiations is accession, the possibility of a status short of full membership (as allowed by the open-endedness of the negotiation process) was unprecedented and thus shook Turkey s membership aspirations. The strongest possible bond mirrored European political opposition to Turkish membership as it echoed Merkel s and Sarkozy s calls for a privileged partnership in lieu of membership. [1.52] The Brussels Conclusions were also controversial in that they fully endorsed the Commission s October 2004 recommendations regarding the conduct of negotiations with Turkey. It was decided that special arrangements (i.e., long transitional periods) could be considered regarding key areas of the acquis such as freedom of movement of persons, structural policies, or agriculture. While similar measures were also envisaged in the accession process of Eastern European EU candidates, they were particularly harsh in the Turkish case since the possibility of permanent safeguard clauses was included. Therefore, if imposed, these arrangements would effectively reduce Turkey s status to that of a second-class EU member state. As for the timeline for the negotiations completion, member states agreed that negotiations would be concluded at the earliest after the establishment of the Financial Framework for the post period due to the substantial financial consequences of Turkey s accession (European Council 2004, 7). In addition, negotiations could be suspended in the case of a serious and persistent breach... of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law (European Council 2004, 8). 19 [1.53] It must be stated that even such tough negotiation terms required intense bargaining among EU member states in Brussels (International Herald Tribune 2004). Indeed, controversy about Turkey did not subside even after the Brussels decision was finalized. To the contrary, the post- Brussels period saw the strongest supporters of Turkey s EU membership bid toughen their stance on the latter. 20 Hence, when negotiations officially started on 3 October 2005 with the adoption of the Negotiating Framework (which fully incorporated the Brussels conclusions), this was

30 Beken Saatçioğlu not welcomed as an entirely positive development by Turkey. Although a new chapter in the accession process had begun, both the negotiation terms and the surrounding political developments in Europe suggested that the positive trend in EU-Turkey relations that had marked the immediate post-helsinki period had now been effectively reversed. Membership Negotiations and Beyond In the post-negotiations period, Turkey s membership prospect has been challenged on a variety of grounds. On the one hand, the EU s membership requirements have expanded, taking on increasingly controversial, political dimensions. On the other, as Turkey s accession process advanced following the 2004 enlargement, European controversy about it sharpened, a phenomenon which was also fed by the EU s enlargement fatigue and the rise of right-wing politics in Europe. Cyprus s accession to the EU in May 2004 brought to the fore new EU demands as conditions for Turkey s membership. The island s integration into the Union as a full member state meant that Turkey had to extend the Additional Protocol (to the EC-Turkey Association Agreement) to Greek Cyprus as part of its obligations arising from the Customs Union. Already in June 2004, Turkey was asked to sign the draft protocol for the adaptation of the association agreement to Cyprus (and the other new member states that had joined the EU in 2004). While the Turkish government signed this in July 2005, it insisted that the signature did not amount to its formal recognition of the Republic of Cyprus and that Turkish ports would not be opened to Greek Cypriot vessels and airplanes unless the EU took steps to lift the economic isolation of Northern Cyprus, which had been promised in exchange for Northern Cyprus s support for the Annan Plan in Spring Still, starting with late 2005, official EU documents (i.e., the Commission s regular progress reports, Accession Partnership documents, the European Council s summit conclusions) consistently raised new accession criteria arising from Cyprus s EU entry: Extension of the Additional Protocol to Cyprus (i.e., via the opening of Turkish ports to Greek Cypriot access) and normalization of relations with Greek Cyprus, which would also include the latter s official recognition by Turkey. Cyprus-related issues were not the only political matters raised by the EU in the context of Turkey s membership. The Commission s first enlargement strategy paper released after the 2004 enlargement added two further conditions that would directly impact Turkey s (and other EU candidates ) accession: the EU s absorption capacity and European public support for further EU enlargement. Hence, the EU made it clear that rigorous but fair conditionality would not be the only mechanism affecting enlargement. As explained in detail in the 2006 enlargement strategy paper, [a]ny new steps in the accession process [would still] depend [1.54] [1.55] [1.56] [1.57]

31 Turkey-EU Relations from the 1960s to 2012 on each [candidate] country s progress in making political and economic reforms (European Commission 2006, 3). However, [the EU s ability to] maintain and deepen its own development, in terms of policies and institutions, while pursuing an enlargement agenda (European Commission 2006, 17) and European citizens support for enlargement would also be considered while deciding on further enlargement. [1.58] To be sure, as a membership criterion, the EU s absorption capacity was not first developed in the Commission s 2005 and 2006 enlargement strategy papers. The new enlargement strategy s discussion of this condition followed the spirit of earlier EU decisions (i.e., the 1993 Copenhagen Council s and 1997 Luxembourg Council s conclusions, as well as the Commission s 2004 Recommendation, as noted above). What rather seemed controversial was the fact that absorption capacity was now elevated to a whole new level by being given as much force as membership conditionality in the enlargement process. After all, this was the first time when the condition was formally and explicitly recognized as such, as opposed to being viewed as a mere consideration in the enlargement process. [1.59] Needless to say, the strategy s inclusion of absorption issues did not bode well for Turkey s accession, given the latter s potentially high costs for the EU. The significance of the absorption condition was compounded by the fact that the EU would now be extra cautious when it comes to bearing new integration costs due to its post-2004 enlargement fatigue. Indeed, in retrospect, it would be fair to say that it was the big 2004 enlargement that pushed the EU to develop such a strict enlargement strategy in the first place. [1.60] As far as the other new criterion, public support for enlargement, is concerned, this too raised negative implications for Turkey s accession. With considerable public opposition to its membership in Europe 21 and the possibility of facing popular referenda in some member states (e.g., France and Austria) 22 on this question, Turkey encountered increasingly serious problems in the accession process. [1.61] Thus, the new enlargement strategy made it sufficiently clear that Turkey s accession would be as much subject to objective membership conditionality as it would be to other, EU-driven factors. Both absorption capacity and European publics stance on Turkey are heavily loaded with a political dimension. Indeed, their incorporation in the new strategy was paralleled by the rise to power of powerful Turkey opponents such as Merkel and Sarkozy. Both leaders are known to have publicly opposed Turkey s full membership out of reasons related to absorption capacity (as well as identity, in Sarkozy s case). They have consequently emerged as the principal advocates of the privileged partnership initiative in the EU. [1.62] The net effect of these political developments was a slowdown in Turkey s EU reform process starting with the second half of The

32 Beken Saatçioğlu EU s increasingly questionable commitment to Turkey s membership (especially signaled via the prospect of open-ended negotiations as stated in the Negotiating Framework),and toughening and politicized stance on integrating Turkey as a full member state weakened both the Turkish public s and the government s faith in the membership process. Thus, the percentage of Turkish people supporting EU membership fell from 71 percent in spring 2004 to 45 percent in fall 2009, and exhibited a generally declining trend in between. At the same time, the number of respondents who think membership is bad has increased considerably (from 9 percent in spring 2004 to 25 percent in spring 2006). 23 In addition, a 2006 national survey found that two-thirds of Turks surveyed had no expectations of full membership in the EU (Çarkoğlu and Kalaycıoğlu 2009, 127). These negative trends have been paralleled by the Turkish public s low levels of trust in the EU, enhancing further the rising Euro-skepticism in Turkey. The suspension of membership negotiations over eight acquis chapters 24 in December 2006 due to Turkey s refusal to open its ports to the Greek Cypriot administration added fuel to the Euro-skeptical feelings in the country. As the then enlargement commissioner, Olli Rehn, explained, the partial freeze would cause no train crash but a definite slowing down [of the negotiation process] because of works further down the tracks. 25 The eight chapters relating to Turkey s obligations to Cyprus under the Additional Protocol would not be opened and no other chapter would be closed until Turkey allowed Greek Cyprus access to its ports. Indeed, since the beginning of negotiations in October 2005, a total of thirteen chapters have been opened and only one chapter (science and research) has been temporarily closed. It is also significant that in 2008 alone, the opening of five chapters was vetoed by France as these were considered to directly contribute to Turkey s membership prospect (which Sarkozy opposes). So far, as many as eighteen out of the remaining twenty-two chapters have been blocked on political grounds (Erdoğan 2011). This led Prime Minister Erdoğan to argue in a recent article: This is turning into the sort of byzantine political intrigue that no candidate country has experienced previously. In this treatment, Turkey is unique (Erdoğan 2011). The extremely slow (and politicized) negotiation process weakened AKP s resolve to implement and initiate reforms needed for membership, effectively reversing the golden age of Europeanization. 26 The postnegotiations period is thus significant for two reasons. First, it resulted in the stagnation (or even reversal, in some areas) of the EU reform process. This was especially evident in the AKP government s resistance to fully institute fundamental political freedoms in practice, a trend that gained prominence after AKP s second term in office. In this period, AKP started to rule with an exaggerated sense of its own power (Öniş 2010, 9) and increased its pressure on the political opposition and the media, which [1.63] [1.64]

33 Turkey-EU Relations from the 1960s to 2012 effectively damaged freedoms of the press and expression as well as rule of law. 27 Consequently, Freedom House raised Turkey s press score to 54 in 2011 from 47 in 2007, while both the OSCE and the European Commission warned that rising pressures on the media may amount to selfcensorship (Organization for Security and Cooperation in Europe 2012; European Commission 2010, 21; European Commission 2011, 26). [1.65] Second, the negotiations process saw the open, public questioning of the EU s membership commitment at the highest political level. For example, President Gül admitted in an interview that Turkey may never have an EU year due partly to the obstacles raised by the EU on the road to membership (Ergin 2010). More explicitly, Turkey s Chief EU Negotiator Egemen Bağış argued that European prejudice against Turkey constitutes the biggest obstacle to Turkey s progress toward accession (Hürriyet Daily News 2010). Hence, in recent years, Turkey s leading political class has proven increasingly critical about the EU s approach to Turkey. [1.66] CONCLUSION [1.67] Turkey is the EU candidate that has sought to join the Union for the longest period of time. Since it first applied for membership in 1987, several hurdles have complicated its EU accession. What slowed the accession process was not just rooted in Turkey s problems in meeting the three official membership criteria adopted in Copenhagen in The EU s reluctance to absorb a large, poor, Muslim country like Turkey, parallel European public opposition to Turkey s membership, and shifting political dynamics in Europe have also combined to influence Turkey s progress toward accession. EU member states politics have sometimes had a positive impact on the accession process, as evident in the shift from Luxembourg to Helsinki in More often than not, however, politics within the EU has not boded well for Turkey s accession. Unlike other Central and Eastern European candidates that had benefited from the support of core EU member states (e.g., Britain, France) in their efforts to join the Union, Turkey has not had a patron in the EU. The isolated, principled support of certain key political figures (i.e., Jacques Chirac, Tony Blair, Gerhard Schröder) has fallen short of preventing, for instance, the inclusion of exceptionally strict negotiations criteria in the 2005 Negotiating Framework. In addition, the EU did not have a moral duty to embrace Turkey, unlike the case with the formerly communist EU candidates. This additionally weakened the EU s resolve to include Turkey as a full member state. [1.68] The post-negotiations period increased European controversy on Turkey s membership, both among right-wing political forces that have been on the rise in recent years and the European public. Opponents of Tur-

34 Beken Saatçioğlu key s EU accession became much stronger and more vocal, and they formed a grand coalition in favor of Turkey s exclusion from the EU (Öniş 2009, 29). Together with the EU s growing, politicized membership demands on Turkey, this enhanced anti-turkey shift has jeopardized Turkey s EU entry more than ever. These developments have increased Euro-skepticism both among the Turkish public and the government, which is now halfheartedly committed to the EU reform process. It has been argued that Turkish foreign policy has simultaneously shifted toward loose Europeanization and a soft Euro-Asianism (Öniş 2009, 35), which in turn arguably reduced the EU s commitment to Turkey s membership (Uğur 2010). While it is not certain at this point whether there is a feedback effect between the EU s decreased commitment to Turkey and Turkey s reduced pro-eu orientation, it is clear that EU membership has turned into a highly complex foreign policy problem for Turkey. In the final analysis, membership seems extremely difficult, if not impossible, in the years to come. [1.69] NOTES 1. Assist. Prof. Dr., İstanbul Kemerburgaz University, beken.saatcioglu@kemerburgaz.edu.tr. 2. The original Article 28 stated: As soon as the operation of this Agreement has advanced far enough to justify envisaging full acceptance by Turkey of the obligations arising out of the Treaty establishing the Community, the Contracting Parties shall examine the possibility of the accession of Turkey to the Community, ( ). 3. For a detailed discussion on how Turkey s democracy problems affected its relations with the EU during the 1980s, see, for instance, Dağı For an excellent discussion on how the EU s special responsibility toward post-communist CEE influenced its decision to enlarge to the east, see Sedelmeier The Luxembourg Council committed to opening accession negotiations with six front-runner candidates (Poland, Hungary, the Czech Republic, Estonia, Slovenia, Cyprus) in the short term, while supporting the preparations of negotiations with the five pre-ins (Latvia, Lithuania, Slovakia, Bulgaria, Romania). 6. For a great discussion on this and Turkey s post-luxembourg EU policy, see Cem 2005, As explained by former Prime Minister Mesut Yılmaz in New York Times Indeed, in 1995, as soon as it became clear that the EU would open accession negotiations with the Greek Cypriot administration, the Turkish Parliament made a decision that formally committed Turkey to integrating Northern Cyprus in the event of Greek Cyprus s EU accession. Hence, it was signaled that Turkey would accept the Cyprus condition for membership only if it was also made a condition for Greek Cyprus s EU entry. 9. The term Europeanization denotes a wide-ranging process of national adaptation to the EU during which the EU s formal and informal rules, policy paradigms, procedures and/or norms are incorporated in domestic policies, political structures, discourses, and identities (Radaelli 2000, 4). 10. For a detailed discussion, see Avcı This was listed as a short-term priority, to be addressed by the end of [1.70] [1n1] [1n2] [1n3] [1n4] [1n5] [1n6] [1n7] [1n8] [1n9] [1n10]

35 Turkey-EU Relations from the 1960s to 2012 [1n11] 12. Statement delivered by Ecevit in response to the draft AP, 18 November 2000, ( ). [1n12] 13. NPAA largely ignored the Cyprus issue, while merely stating that the abolition of the death penalty would be considered. [1n13] 14. For an extensive review, see Özbudun [1n14] 15. The original Copenhagen statement read: If the European Council in December 2004, on the basis of a report and a recommendation from the Commission, decides that Turkey fulfills the Copenhagen political criteria, the European Union will open accession negotiations with Turkey without delay (European Council 2002c, para. 19). [1n15] 16. For an extensive review, see Müftüler-Baç [1n16] 17. In this respect, probably the most forceful statement was made in the Commission s 2003 strategy paper: The absence of a settlement [in Cyprus] could become a serious obstacle to Turkey s EU aspirations (European Commission 2003, 16). [1n17] 18. As decided by the 1997 Luxembourg Council Conclusions (para. 25). [1n18] 19. It should be noted, however, that the prospect of suspension is not unique to the Turkish case, as it also concerned Croatia. [1n19] 20. For example, former French President Jacques Chirac famously noted that Turkey would have to undergo a major cultural revolution before joining the EU. Similarly, Tony Blair, a strong advocate of Turkish membership, stated that negotiations with Turkey would be an issue of controversy for years to come and would imply a very big change for Europe and Turkey (New York Times 2005). [1n20] 21. In the post-helsinki period, the EU s Eurobarometer surveys found that European support for Turkey s membership ranges merely between 28% and 34% ( ). In addition and more significantly, a considerable number of Europeans (48% and 45% in spring 2006 and spring 2008, respectively) reported that they would oppose Turkey s accession even if it complied with all the membership conditions (Standard Eurobarometer 65 and 69), eb_arch_en.htm ( ). [1n21] 22. As evident in Eurobarometer surveys, both countries publics are strongly against Turkey s membership. [1n22] 23. The numbers are provided by Standard Eurobarometer 61, 65, and 72, ec.europa.eu/public_opinion/archives/eb_arch_en.htm ( ). The original survey question asked to assess support for EU membership is: Generally speaking, do you think Turkey s membership of the European Union would be: a good thing, a bad thing, neither good or bad? [1n23] 24. The chapters concerned are: free movement of goods, right of establishment and freedom to provide services, financial services, agriculture and rural development, fisheries, transport, customs union, and external relations because of the trade policy aspects. [1n24] 25. Speech by Olli Rehn, November 29, 2006, ( ). [1n25] 26. For an extended analysis on why the reform process slowed down in the post period, see, inter alia, Patton [1n26] 27. Rule of law has come under serious strains with the so-called Ergenekon, Balyoz and KCK investigations, which led to the imprisonment of AKP critics in the military, the media, and academia, as well as Kurdish activists, based upon allegations of plotting to overthrow the government and terrorism charges. See, inter alia, Doğan and Rodrik [1.71] REFERENCES Agence France Presse EU to Clear Path to Turkey Customs Union, Cyprus Membership. 4 February. Australian EU Puts Turkey on 10-Year Time Line. 7 October.

36 Beken Saatçioğlu Avcı, Gamze Turkish Political Parties and the EU Discourse in the Post-Helsinki Period: A Case of Europeanization. Mehmet Uğur and Nergis Canefe (eds.), Turkey and European Integration: Accession Prospects and Issues, London: Routledge. B BC Monitoring Europe German Opposition Leader Defends Privileged Partnership for Turkey in EU. 17 October. Balkır, Canan Turkey s Road to EU Membership: Economic Outlook. Koz- Gazdasag 3: Çarkoğlu, Ali, and Ersin Kalaycıoğlu The Rising Tide of Conservatism in Turkey. New York: Palgrave Macmillan. Cem, Ismail Avrupa nın Birliği ve Türkiye. İstanbul: İstanbul Bilgi Universitesi Yayınları. Dağı, İhsan Human Rights, Democratization, and the European Community in Turkish Politics: The Özal Years, Middle Eastern Studies 37(1): Doğan, Pınar, and Dani Rodrik How Turkey Manufactured a Coup Plot. Foreign Policy 6 (April 2010). Economist One for the Opposition. 2 June. Erdoğan, Recep Tayyip The Robust Man of Europe. Newsweek, 17 January. Ergin, Sedat Gül den AB Çıkışı. Hürriyet, 16 April. European Commission Commission Opinion on Turkey s Request for Accession to the Community, European Commission Continuing Enlargement: Strategy Paper and Report of the European Commission on the Progress towards Accession by Bulgaria, Romania, and Turkey, COM (2003) 676 final, Brussels. European Commission. 2004a. Recommendation of the European Commission on Turkey s Progress towards Accession, COM (2004) 656 final, Brussels. European Commission. 2004b. Issues Arising from Turkey s Membership Perspective, COM (2004) 656 final, Brussels. European Commission Enlargement Strategy and Main Challenges , including annexed special report on the EU s Capacity to Integrate New Members, COM (2006) 649 final, Brussels. European Commission Turkey 2010 Progress Report, COM (2010) 660, Brussels. European Commission Turkey 2011 Progress Report, COM (2011) 666 final, Brussels. European Council Conclusions of the Strasbourg European Council of 8 9 December 1989, Bulletin of the European Communities No. 12. European Council Conclusions of the Copenhagen European Council of June 1993, SN 180/1/93 REV 1. European Council Conclusions of the Luxembourg European Council of December European Council Conclusions of the Cardiff European Council of June 1998, SN 150/1/98 REV 1. European Council Conclusions of the Helsinki European Council of December European Council Conclusions of the Laeken European Council of December 2001, SN 300/1/01 REV 1. European Council. 2002a. Conclusions of the Copenhagen European Council of December 2002, 15917/02. European Council. 2002b. Conclusions of the Brussels European Council of October 2002, 14702/02. European Council. 2002c. Conclusions of the Seville European Council of June 2002, 13463/02. European Council Conclusions of the Brussels European Council of December 2004, 16238/1/04 REV 1.

37 Turkey-EU Relations from the 1960s to 2012 Guardian. 2004a. EU Puts Turkey on a Long Road to Accession: Commission Gives an Amber Light for Entry; Talks to Start, but They Will Stop If Rights Are Violated. 7 October. Guardian. 2004b. In 1683 Turkey Was the Invader. In 2004 Much of Europe Still Sees It That Way. 22 September. Hürriyet Daily News Turkey Must Overcome Bias on Path to EU. 30 April. International Herald Tribune A Historic Event for EU and Turkey: Membership Talks Get the Green Light after Deal on Tacit Recognition of Cyprus. 18 December. McLaren, Lauren Turkey s Eventual Membership of the EU: Turkish Elite Perspectives on the Issue. Journal of Common Market Studies 38(1): Müftüler-Baç, Meltem Turkey s Political Reforms and the Impact of the European Union. South European Society and Politics 10(1): Müftüler-Baç, Meltem, and Lauren M. McLaren Enlargement Preferences and Policy-Making in the European Union: Impacts on Turkey. European Integration 25: New York Times Turkey, Rejected, Will Freeze Ties to European Union. 15 December. New York Times EU Leaders Raise Red Flags on Turkey. 5 October. Öniş, Ziya Domestic Politics. International Norms and Challenges to the State: Turkey-EU Relations in the Post-Helsinki Era. Turkish Studies 4(1): Öniş, Ziya The Political Economy of Islam and Democracy in Turkey: From the Welfare Party to the AKP. Dietrich Jung (ed.), Democratization and Development: New Political Strategies for the Middle East, New York: Palgrave Macmillan. Öniş, Ziya The New Wave of Foreign Policy Activism in Turkey: Drifting Away from Europeanization? DIIS Report 05. Copenhagen: Danish Institute for International Studies. Öniş, Ziya Contesting for the Center : Domestic Politics, Identity Conflicts and the Controversy over EU Membership in Turkey. Working Paper No. 2. Istanbul: Istanbul Bilgi University European Institute. Organization for Security and Cooperation in Europe OSCE Media Freedom Representative Calls for Legal Reforms after Study Shows 95 Journalists Imprisoned in Turkey, ( ). Özbudun, Ergun Democratization Reforms in Turkey, Turkish Studies 8(2): Patton, Marcie J AKP Reform Fatigue in Turkey: What Has Happened to the EU Process? Mediterranean Politics 12(3): Radaelli, Claudio Whither Europeanization? Concept Stretching and Substantive Change. European Integration Online Papers 4(8). Sedelmeier, Ulrich Eastern Enlargement: Risk, Rationality and Role-Compliance. Frank Schimmelfennig and Ulrich Sedelmeier (eds.), The Politics of European Union Enlargement: Theoretical Approaches, New York: Routledge. Times Attack on Turkish Membership Renewed. 11 September. Turkish Daily News Erdoğan s Determination Satisfies EU Ambassadors. 8 November. Uğur, Mehmet The European Union and Turkey: An Anchor/Credibility Dilemma. Aldershot, UK: Ashgate. Uğur, Mehmet Testing Times in EU-Turkey Relations: The Road to Copenhagen and Beyond. Journal of Southern Europe and the Balkans 5(2): Uğur, Mehmet Open-Ended Membership Prospect and Commitment Credibility: Explaining the Deadlock in EU-Turkey Accession Negotiations. Journal of Common Market Studies 48(4):

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39 TWO Europeanization of Turkish Politics and Policies Past, Present, and Future Atila Eralp and Zerrin Torun 1 [2.0] The project of Westernization or modernization defined and justified reforms in the Turkish political, legal, and sociocultural system in order to reach the standards of higher civilization attained in other parts of the world, particularly since the establishment of the Republic of Turkey. As the EU started to actively engage in transformation of its environment and the relationship between Turkey and the EU evolved, the EU turned into an agent that has the potential to induce change in Turkey. Since then, the project of modernization has become almost synonymous with Europeanization for Turkey. In academia, on the other hand, Europeanization gained wider recognition as a concept that refers to the impact of the EU on the national level, particularly on its member states. Although Europeanization in the candidate states did not receive much attention in the literature until recently, perhaps because the relationship is hierarchical, the EU impact on candidate countries including Turkey cannot be taken as given just because candidate countries are not given the possibility of opting out during the accession process. 2 [2.1] Accession negotiations aim at preparing a candidate country for EU membership in all areas of governance and policy standards one can think of, and this is where the EU s transformative power should peak. The success of the EU enlargement policy as one of the instruments through which the EU transforms its environment comes from the membership incentive offered to candidate countries. The importance of mem-

40 Atila Eralp and Zerrin Torun bership prospect for the EU s transformative power can be seen in the mixed record of the European Neighbourhood Policy, which leaves this prospect in ambiguity for the target countries. However, despite the fact that Turkey-EU relations are not part of the European Neighbourhood Policy which compromises the EU s transformative power, as will be seen below Turkey s story of Europeanization has also been a very tainted one due to the interaction of EU-related and domestic factors. 3 This chapter sets out to present the factors that have limited the EU [2.2] impact on Turkish politics and policies, despite the Turkish EU candidacy, and argues that the EU impact was greater when the prospect of carrying the relationship to a further level was credible and clear. 4 The significance of the credibility of the EU membership perspective for successful Europeanization can be seen in the fact that the impact of the EU diminished in Turkish politics and policies after 2005, when ambiguity regarding the Turkish EU membership increased as a result of the negative messages coming from the EU and its member states and the blockades in the accession negotiations. The conclusion in this light highlights that the story of the Europeanization of Turkish politics and policies will continue to be tainted and characterized by ups and downs as long as the credibility of the EU s membership prospects for Turkey remains questionable. The chapter will proceed with a section on the developments until the [2.3] opening of accession negotiations in 2005 and show that the EU impact was strong during this period because of the motivation provided to the Turkish public and policy makers by the prospect of opening accession negotiations if reforms were carried on. The second section is going to focus on the period after the opening of Turkish EU accession negotiations in 2005 and present the factors that made the prospect of Turkish EU membership unreliable from the Turkish perspective. This section is going to make it clear that the diminishing credibility of the EU membership prospect since then has decreased the EU impact on Turkish politics and policies during this period. The decreasing credibility of the EU not only influenced the process of the EU-induced reform in Turkey negatively, but also recently led to the decoupling of the Turkish reform process from the European integration. This justifies the conclusion that the future of Europeanization in Turkey or the impact of the EU on Turkish politics and policies will continue to be characterized by ups and downs, given that there is no consensus on Turkey s EU membership between the EU member states. The findings of the previous sections and the implications of these will be discussed in detail in the concluding section.

41 Europeanization of Turkish Politics and Policies [2.4] EUROPEANIZATION OF TURKISH POLITICS AND POLICIES UNTIL 2005 [2.5] Official relations between Turkey and the EU date back to the Association Agreement signed in 1963, the significance of which lies in the prospect it envisaged for Turkish accession to the then European Community (EC), when Turkey becomes able to fulfil the obligations of membership. Since then, the EU has gone through a number of enlargement waves, and in view of the enlargement toward Central and Eastern European countries it detailed the conditions for its membership. The Copenhagen Criteria of 1993 stipulated that in order to start accession negotiations candidate countries should be able to assume the obligations of EU membership (acquis communautaire) and meet the economic criteria of a functioning liberal market economy and political criteria including the stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minority rights. Turkey officially applied for membership in 1987, at a time when the transition from the military regime of 1980 had gained ground. The European Commission opinion on the application was not an outright rejection of Turkey s eligibility for membership on the basis that it is not a European country, as was the case with Morocco s application. Instead, the Commission underlined Turkey s eligibility, but deferred an in-depth analysis of the application until emergence of a favorable environment, since the EC was busy with its own internal reform process, namely the completion of a single market. As proposed by the Commission then, Turkey and the EC focused on completing the Customs Union which was envisaged by the Association Agreement and accomplished this in The Turkish with the EU facilitated its economic integration with the EU, while political integration lagged behind. The positively influenced Turkey s economic growth, broadened the diversification of its trade, and contributed to increasing competitiveness of Turkish industry as well (Nas 2011, 56 57). [2.6] However, Turkish EU membership became increasingly elusive over time, as the EU integration deepened and the role of identity came to the fore. Particularly during the post Cold War era, various actors emerged within the EU who opposed Turkish EU membership mostly on cultural grounds. Despite the increasing public debate on whether Turkey is European or not, the Helsinki European Council of 1999 granted Turkey the status of candidate country, in line with the EU s previously established official approach on the eligibility of Turkey as a European country. The EU pressure and the prospect of candidacy provided the motivation for legal and constitutional reforms, particularly on human rights and democratization in Turkey throughout the 1990s. One example of the reforms to secure a promising decision at the Helsinki European Council is the decision of the coalition government of the period to ratify the Con-

42 Atila Eralp and Zerrin Torun vention against Torture (Kulahci 2005, 397). After the status of candidacy was granted, reforms in Turkey gathered pace in order to start accession negotiations. These reforms focused on the EU s most significant reservations about Turkish politics and policies, including freedom of expression, human rights, and civil-military relations (Müftüler-Baç 2005, 22). As a result of EU pressure, in addition to the abolishment of the death penalty, changes included allowing broadcasting and education in languages other than Turkish, and adoption of a new Civil Code, which reinforced gender equality and freedom of association as well as revision of the Penal Code to include measures against the lack of freedom of expression and widespread cases of torture and ill treatment. The late 1990s also saw indirect EU influence on Turkish foreign policy, as it has provided the context within which Turkish and Greek foreign policy makers initiated their dialogue. The current relationship between Turkey and Greece which is free of the risk of major escalation of tension today, despite the fact that they have not reached a stage of complete resolution of their disputes owes much to the EU impact on both parties. Domestically, the EU-induced reform process served to strengthen the role of civil society organizations and increased their legitimacy as one of the actors that should be listened to; they in turn became vocal supporters of further democratization in line with the EU standards. 5 Therefore, the EU impact contributed to change from the traditional top-down reform process as seen fit by the state elite in Turkey toward the democratization of governance and diversification of actors involved in the process, such as the nongovernmental organizations (NGOs) that are revealed by widespread public debate on reforms. The understanding that the state elite (civil and military bureaucracy) knows what is best and that the state comes before citizens started to lose its dominance. Although there also appeared anti-eu and/or anti-reform societal forces, development of civil society led to drastic change in public debate in Turkey and diminished the taboo subjects in public discussions, especially on interethnic relations (Tunkrová 2010, 37). In addition, the EU-induced reform process contributed to gender equality in Turkish society through positive legislative changes. In 2001, gender equality in marriage was introduced and revisions were made to the laws on violence against women, accompanied by changes to the Constitution in this area in As a result of these efforts, the 2006 progress report prepared by the European Commission noted that the Turkish legal framework remained satisfactory in terms of gender equality, despite the fact that the implementation was problematic (Tunkrová 2010, 44 45). For instance, whereas honor killings are explicitly illegal and the state has removed any differentiation in sentencing for these crimes, they persist. In this sense, as Stivachtis and Georgakis (2011) also note, the problem of securing translation of legal changes into social [2.7] [2.8]

43 Europeanization of Turkish Politics and Policies changes in the domestic sphere highlights one of the domestic factors that limit Europeanization in Turkey: the necessity for domestic cultural change, in this case the patriarchal system dominant in Turkish society. [2.9] Another direct and more significant influence of the European integration process in this period can be observed in civil-military relations. 6 The Turkish army has historically been an important actor, which directly intervened in politics through coups or memorandums to governments in 1960, 1971, 1980, 1997, and The army s role in policy making since the 1960 military coup was secured through the National Security Council (NSC), which brought the civilians, including relevant ministers and bureaucrats, together with high-level military command. From the perspective of the military, on the one hand, the EU membership process has been desirable in view of the traditional Westernization project it espoused; on the other hand, the EU requirements threaten its role in Turkish politics since these involve cutting back of some of the military s powers. Regardless, in the early 2000s, functions and membership of the NSC changed. The number of civilians in the NSC and its secretariat increased, it turned into an advisory body which meets every two months instead of monthly, and it became possible to appoint a civilian as its secretary general. Some of the powers of the NSC were abolished as well, such as the power of supervising the implementation by the government of its decisions and running national security inspections. To give another example of major changes in this area, seats of the military in civilian boards (for instance, in the Higher Education Board and the Board of Inspection of Cinema, Video, and Musical Works) were removed. Thus, the EU pressure has led to a change in the balance within the NSC in favor of civilians and paved the way for a civilianized Turkish foreign policy (Aydın and Açıkmeşe 2007, 269). [2.10] Furthermore, as Rabia Karakaya Polat underlined, together with the improvement of the civil society s role in Turkey, changes induced by the EU on civil-military relations contributed to a process of desecuritization in Turkish politics and society, whereby issues are moved from the security agenda and put back into the political agenda (Polat 2010, 63 66). The motivation for carrying the EU-Turkish relations to another level has thus contributed to the alleviation of ethnic problems, particularly the Kurdish issue in Turkey, and as will be seen below, has increased the Turkish government s enthusiasm to solve the Cyprus conflict. Overall, the period between 1999 and 2004 has witnessed radical changes in Turkish politics and society due to the EU requirements for reforms in legislation on various issues accompanied by increasing economic stability, unprecedented levels of foreign investment, and growing competitiveness of the private sector. [2.11] While one should not forget the significance of the efforts of previous governments for reforms in order to meet the EU political criteria in particular, efforts of the Justice and Development Party (AKP), which

44 Atila Eralp and Zerrin Torun came to power in 2002, are distinctive in this context. As the European Commission stated in its 2003 progress report, when it first came to power, the AKP accelerated the reform process (Kulahci 2005, 392). The AKP government s efforts signified transformation of Turkish political Islam, not only under the impact of historically enshrined secularism and successive military coups in the country, but also under the impact of the EU. The understanding that the EU-induced democratization will improve religious rights and freedoms contributed to a mentality shift in pro-islam intellectuals and the political party. The AKP government completed the abolishment of the death penalty altogether and ratified the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; and the Convention on Elimination of All Forms of Racial Discrimination (Kulahci 2005, 398). In addition, Turkey adopted a new Penal Code on September 2004, just a week before the Commission s 2004 Progress Report was released (Müftüler-Baç 2005, 28). These reforms show that the accession process and the timing of human rights reform in Turkey are directly linked. 7 Therefore, successive reform efforts of different governments during [2.12] the 1990s and early 2000s have to also be seen in light of the credibility of the EU membership perspective for a healthy assessment of the conditions that facilitate the EU impact on Turkey. The reforms mentioned above came at a period when the influence of the EU on the way of thinking of policy makers, bureaucracy, and the public was perhaps at its highest level due to clear incentives. All of these examples confirm that the scale of Europeanization is higher in Turkish politics and policies if the prospect of carrying the relationship to a further level is credible and clear. This period of major changes in Turkish politics and policies as a result of the EU motivation and pressure, however, was followed by a period of inertia and reluctance to proceed with the EU-induced reform process after the opening of accession negotiations in The following section will present the factors that led to this outcome. A PERIOD OF TAINTED EUROPEANIZATION AFTER 2005 The opening of accession negotiations with a debatable view to membership in October 2005 as a result of these developments was another turning point in relations. The EU declared that Turkey sufficiently fulfilled the Copenhagen Criteria for membership, including the political and economic criteria, as well as the ability to assume obligations of full membership in terms of incorporating the EU legislation into its domestic system. While Turkish economic integration with the EU has continued unabated, as can be seen in the steadily increasing levels of trade in between and the European direct investments in Turkey since 2005 (Tocci 2011, 91), the start of accession negotiations happens to be the period [2.13] [2.14]

45 Europeanization of Turkish Politics and Policies when the EU s official emphasis on the open-ended nature of the process created significant difficulties in terms of domestic ownership of the Turkish political reform process. [2.15] The negotiation framework for Turkey was a strict one that enabled the EU to determine opening and closing benchmarks for every chapter in accession negotiations. The EU has also emphasized its absorption or integration capacity for enlargement to take place and foresaw long transition periods, derogations, and even permanent safeguard measures (European Commission 2005). In addition to the EU s official endorsement of the idea that the completion of accession negotiations will not guarantee membership, the issue was further complicated as it started to increasingly become part of the EU member states domestic politics with the coming into power of political parties or leaders who are opposed to Turkish membership, as in France and Germany. Opposition to Turkish EU membership even became part of political campaigns against the Constitutional Treaty of the EU during the failed 2005 referenda in France and the Netherlands. As a result of these ambivalent and even negative messages from Europe, the EU s credibility suffered a major blow, since these led to increasing distrust at both the elite and public opinion level in Turkey. Moreover, it has become increasingly difficult for the pro-eu coalition in Turkey to demand change in line with the EU standards and thus, the EU influence on Turkey started to diminish. [2.16] The process of Europeanization was even further complicated as a result of the accession of Cyprus to the EU without the resolution of the conflict on the island. Subsequently, the EU insisted on the opening of Turkish ports and airports to ships and aircraft from Cyprus with a view to expand the Customs Union to cover the new EU member states (implementation of the expanded Additional Protocol). The Turkish government in response emphasized that this can be done if direct trade between the EU and Northern Cyprus (Turkish Republic of Northern Cyprus) is also enabled, in line with the EU Council of Ministers` decision to end the isolation of Northern Cypriots. This was a decision of the Council that was thought of as a safeguard against the failure of the 2004 referendum on the UN s Annan Plan to resolve the Cypriot issue, in case one of the communities on the island rejected it. In the end, although the Greek Cypriots, who rejected the plan, were rewarded with membership in the EU, the Turkish Cypriots, who voted in favor, were not even given a way out of their isolation. [2.17] It has been unfortunate that the EU had to renege on its principle to require resolutions of conflicts before a candidate country becomes a member, which in this case meant that the EU has imported an international conflict and ceased to be a neutral party able to exert influence on both parties on the island. This naturally exacerbated the mistrust toward the EU, this time not only in Turkey but also in Northern Cyprus, and made it harder for both of them to take any further steps, since from their

46 Atila Eralp and Zerrin Torun perspective Europe was neither just nor reliable. Therefore, as a result of the EU failure to engage in direct trade with Northern (Turkish) Cyprus due to the Greek (Southern) Cypriot veto, the expanded application of the Customs Union to the recently enlarged EU failed. Just a year after opening accession negotiations, in December 2006, the European Council decided to suspend eight chapters in Turkish accession negotiations that had direct relevance to the issue. The European Council also decided not to provisionally close any chapters until the Commission had confirmed that Turkey had fully implemented its commitments under the expanded Additional Protocol. 8 In addition, Cyprus decided to unilaterally block other chapters, which caused further mistrust toward the EU in Turkey. 9 As Ziya Öniş (2007, 255) pointed out, even in the early months of 2005, [2.18] there was plenty of evidence that the AKP government had started to lose its initial enthusiasm for an EU-induced reform process. For instance, the government did not repeal Article 301 of the Turkish Penal Code, which prohibited insulting the Turkish state and the nation. Negative influence of ambivalent EU messages and problems in accession negotiations can particularly be seen in the failed administrative reform process in Turkey, which envisaged decreasing the powers of the center over the local administrative structures. Concrete steps toward this goal, such as the classification of the regions in line with the EU standards and establishment of regional development agencies, were not followed through after 2006, and the government sought new ways to sustain the control of the local level by the center (Çelenk 2009, 54, 56). Keeping in mind that currently, even the negotiation of the chapter that includes regional policy is not possible, it is obvious that as the prospect of EU membership waned and accession negotiations were slowed down purposefully by the EU member states, Turkish decision makers became more and more selective in initiating reforms that may compromise their powers. Thus, as a result of both domestic concerns and the missing EU support in this policy area, decentralization of administrative responsibilities and even its value as a more effective and democratic way of local governance did not take root in the country. This happens to be yet another example which demonstrates that deeper reforms, the internalization of the EU-induced reforms or their implementation, require increased credibility of the prospect to carry Turkish relationship with the EU to another level. However, despite the stalemate in accession negotiations as a result of [2.19] the Cyprus issue, the EU influence can even be observed in the Turkish approach to this problem. The parliamentary period of coincided with the Annan Plan for Cyprus, and its intense schedule of negotiations provided the AKP with an opportunity for the reorganization of civil-military relations during this parliamentary term. The AKP pledged to change Turkey s traditional stance on Cyprus, which is defined as a national cause and an issue of national security based on geopolitical

47 Europeanization of Turkish Politics and Policies and strategic concerns. This was also a starting point for the restructuring of foreign and security policy making under their government (Akşit and Melakopides 2008, 8). The AKP government s open support to the failed Annan Plan of the UN was an explicit and significant change from the traditional Turkish approach (which saw non-solution as the solution in Cyprus) toward openly supporting the solution of the problem and offering various options open to dialogue and cooperation. This change became possible as a result of both the EU impact, including the prospect of carrying the Turkish relationship with the EU to another level by opening accession negotiations, and a change of government in Turkey. Nonetheless, it should also be noted that for the Turks and Turkish Cypriots, the facts that the Greek Cypriots were rewarded with EU membership although they rejected the Annan Plan for the resolution of the conflict 10 and that the EU pledge for direct trade with northern Cyprus never materialized, justify Turkey s decision not to extend the Customs Union to Cyprus even at the cost of accession negotiations being blocked by Nicosia. [2.20] Earlier change in the traditional Turkish approach to the Cyprus issue is not the only example of changes in Turkish foreign policy under the influence of the EU. Even the recent activism in Turkish foreign policy toward other regions owes much to the change in institutional balances in the making of foreign and security policy that became possible as a result of the EU influence in the early 2000s. 11 The change in institutional balance freed the hands of the AKP government, which was in favor of developing closer relations with Turkey s neighborhood, while some in Turkish society argued that this was a development that would undermine the country s relations with the West. However, Turkey s increasing initiatives in the Middle East, the Caucasus, and the Balkans, as well as in Africa, with the objective to build interdependencies in these regions so that the potential for conflict will decrease, are certainly in line with the EU approach to foreign policy and the accession criterion of good neighborly relations. As underlined by Temel İskit, a former Turkish diplomat, what has changed is that Turkey has begun to democratize. That happened with agreement to fulfil the Copenhagen Criteria, and this democratization has led to a new spirit of co-operation and compromise (Kristiansen 2010). Moreover, as many Turkish analysts point out, Turkey s relationship with the EU and its EU candidacy in particular are part of the reasons behind its increasing appeal and prestige in the Middle East (Çalış 2010, 83). Nonetheless, due mostly to the stagnation in the accession process, the impact of the EU even in this area is also increasingly losing its dominance and arguably has become an instrument of Turkey s regional-power objectives in foreign policy (Kardaş 2010, 132). Although Turkey is committed to the EU membership goal and is a NATO member, its foreign policy actions within the new regional approach may challenge the EU as well as the United States, as

48 Atila Eralp and Zerrin Torun can be seen in its recent objection to the strengthened UN sanctions toward Iran on its alleged nuclear program. In other words, increasing reliance on soft power by Turkish foreign policy makers is a clear result of the country s EU-related transformation, brought about not only by political conditionality on democratization, but also by its influence on the way of thinking with regard to legitimate instruments and actors in defining and pursuing foreign policy goals. However, this may not guarantee convergence in foreign policy actions, which is not a desirable development from the perspective of the EU. In the absence of the motivation to carry the relationship with the EU to another level and advance it, in effect, the EU is increasingly likely to become one facet of Turkish multidimensional foreign policy. 12 [2.21] There are other problems in Turkish accession to the EU, which are perhaps bigger than the Cyprus problem. In addition to the negative impact of the Cyprus issue in accession negotiations, illustrated by the reasoning behind the unilateral veto of France on chapters that it believes will put Turkey in line for accession, 13 there is the issue of arguments against Turkish membership on the basis of essentialist definition of identities. This is related to the ambiguity or contested nature of both the European identity and the final borders of Europe in an ongoing debate, which also harms the credibility of the EU membership prospect for Turkey and therefore the domestic ownership of the reform process in the country. The French position against Turkish EU membership as advanced by former president Nicolas Sarkozy since 2007 rests on the idea that Turkey is neither culturally nor geographically European and shows the significant impact of the currently contested nature of the definition of European identity and the final borders of Europe. The debate on Turkey in France is also tied to the political competition between secularists and Catholics within political parties, civil society, academia, and the media. Whereas the former appreciate the Turkish state s control of religion, the latter highlight Turkey s religion as an argument either in favor of Turkish EU membership in a multireligion Europe or against Turkish EU membership on essentialist grounds relating to Turkey s different religion (Tocci 2011, 97). Similar fragmentation of opinion within this debate seems to be repeated at the EU level, despite the fact that the official policy of the EU so far has been defining Europeanness on the basis of political norms and values (İçener and Çağlıyan-İçener 2011, 20 23; Torun 2006). From the perspective of Turkey, the decision of France under the leadership of former president Sarkozy to block accession negotiations is not really understandable, as France is legally committed to put the issue of Turkish EU membership to a referendum once negotiations are completed. With the likely chance that the French public will say no to Turkish EU membership, French policy makers reluctance in showing goodwill and supporting Turkey s reform efforts is inexplicable. Furthermore, if this definition of Europeanness in terms of cultu-

49 Europeanization of Turkish Politics and Policies ral/religious identification instead of political/economic terms gains wider support within the EU than it currently does, it may eventually perpetuate social, religious, and cultural tension even within existing boundaries of the EU and prove to be detrimental for its transformative and normative power in the international realm. [2.22] It is also worth noting that while current German government under the leadership of Angela Merkel has also been against full EU membership of Turkey and joined France in support of a privileged partnership short of membership for Turkey, it did not adopt a similar position to block accession negotiations, since this would be a violation of the EU promise that Turkish accession negotiations will follow the path that other candidate countries have been subject to and the principle of pacta sunt servanda in international relations. Compared with the French position of blocking accession negotiations, the German position seems more constructive for sustaining the EU influence on Turkey in terms of encouraging and supporting the reform process. However, even an agreement at the EU level to follow this principle in accession negotiations may not guarantee the Europeanization of Turkish politics and policies. As long as the EU member states do not determine what Europeanness means or where the boundaries of Europe lie in an inclusive manner, the risk of failure of the ratification of Turkish accession even if the negotiations are completed successfully in the EU member states or at the European Parliament based on exclusionary answers to these questions will continue to hamper Europeanization of Turkish politics and policies and, in particular, the implementation of reforms. [2.23] The impact of the missing EU anchor in Turkey s reform process can also be seen in the increasing polarization of politics within the country during the AKP s second and third terms in government. In view of the slowing down of the EU-induced reform process, declarations made by the government on its continuing commitment to EU membership do not seem to any longer allay concerns of some segments of the society about the Islamic leanings of the AKP members or their authoritarian tendencies, as it did during the first term of AKP government. The slowing down of the EU-induced reform process and limited enthusiasm in terms of implementation of reforms, on the other hand, can be seen as a result of the decreasing trust that Turkey will one day become an EU member, which in turn makes the government more or less immune to EU influence. As was presented above, during its first two years in government, obtaining a date to open accession negotiations figured high on the AKP s agenda. Therefore, it pushed major legislative changes through the parliament in order to realize this goal. However, as Marcie J. Patton (2007, 344) also highlights, the government became trapped between the EU s failure to act reassuringly and nationalist repercussions at home, in particular after the EU started to send mixed signals by simultaneously deciding that the accession negotiations would start in 2005 and warning

50 Atila Eralp and Zerrin Torun that negotiations could be suspended at any time. During the period after the opening of accession negotiations, the Cypriot, French, and the EU decisions further increased the distrust toward the EU and Turkish nationalism, which in turn have been negatively influencing Europeanization in Turkey to this date. Due to this high degree of mistrust toward the EU, all political parties seem to be making rare and instrumental references to the EU, as can be observed in their campaigns over the referendum on constitutional changes in September Furthermore, debates on democratization attempts, such as the Kurdish opening and the project of making a new constitution, take place in the absence of the EU anchor, which increases polarization at both political and societal levels. 14 In the meantime, the AKP government tried to put flesh on the bones of its declarations of commitment to Europeanization and further reforms in this framework. In December 2008, after more than four years delay, Turkey launched another National Program for a formal legislative road map toward the EU accession process. In early 2009, the government appointed its first full-time EU accession negotiator with the capacity of state minister. In 2011, the government decided to turn the Secretariat General for European Union Affairs into an exclusive ministry dealing with EU affairs. Despite these, as the European Commission noted in 2010, sources of concern remain: shortcomings in implementation of reforms on issues such as gender equality, efficiency of the judicial system, anticorruption measures, and the military s formal and informal attempts to influence politics. As the members of the Independent Commission on Turkey also underline, freedom of expression must be secured by narrowing the definition of terrorism in the Anti-Terror Law and ensuring European standards in the interpretation and implementation of restrictive regulations by the courts and security services. Turkey also needs to adopt the EU standards on procurement as another step to full transparency and reducing corruption in government. There is also a crucial need for a new Political Parties Law to strengthen intraparty democracy, encourage youth to enter mainstream politics, bring transparency to party financing, and end a system in which party leaders are too easily able to crush dissent (Independent Commission on Turkey 2009, 15). In addition to the continuing need for reforms in these areas, the European Commission continues to call on Turkey to resolve disputes with its neighbors, including Armenia, and as it has done since 2006 notes Turkey s failure to open its ports to Cyprus, while acknowledging that the constitutional reforms adopted in 2010 served to create conditions for progress in several areas of interest to the EU (European Commission 2010). However, popular mistrust of the EU in Turkey makes it unthinkable for any cabinet to change the Turkish position on not extending the Customs Union to Cyprus without simultaneous EU actions to end the isolation of Northern Cyprus. Even if the EU finally decides to [2.24] [2.25]

51 Europeanization of Turkish Politics and Policies implement its Direct Trade Regulation with Turkish Cypriots, it is possible that some segments of society will continue to oppose extending the Customs Union to Cyprus. They are likely to oppose a positive Turkish move, pointing out as evidence of the EU s hypocrisy and consistent unfairness the fact that the Customs Union demands that Turkey grant Cypriot ships and aircraft access to its ports and airports while placing Turkish transportation beyond the scope of this agreement. Therefore, resolution of the Cyprus problem appears to be a necessity, as can also be seen in the fact that Turkey refuses to take part in the meetings under the Cypriot presidency of the EU in the second half of [2.26] In addition, ambivalent and negative messages from the EU on Turkish membership, regardless of Turkey s progress in meeting the EU criteria, continue to arrive. In February 2010, former French president Nicolas Sarkozy, visiting Turkey in his capacity as chairman of the G20, stated that he saw Turkey as a Middle Eastern country rather than as part of Europe and that it is necessary to have close ties between Turkey and the EU as much as possible without going any further toward full membership. Moreover, although it was eventually withdrawn, during the drafting of the European Parliament s resolution on Turkey s accession progress, representatives of the European People s Party (EPP) proposed an amendment calling on the EU institutions to study the possibility of establishing a privileged partnership with Turkey as an alternative to full EU membership (Morelli 2011, 11). The combined impact of the factors presented above is the diminished credibility of the EU in Turkey, which negatively influences the EU-induced reform process. In the words of Turkish Prime Minister Recep Tayyip Erdoğan, Turkey wants a clear target date and a timetable for negotiations through which Europe could prove to the Turkish people that they are sincere. On numerous occasions, Erdoğan has called on the EU to be honest, arguing that if the EU doesn t want Turkey, they should say it clearly (Spiegel 2007). Erdoğan also underlined that the EU approach toward Turkey is reducing our goodwill towards the EU, since we are struggling to join the EU, but they struggle not to take us (Champion 2010). [2.27] Therefore, principal issues remain unchanged in the Turkey-EU relationship, despite the recent adoption of a positive agenda, which has been advanced by the European Commission and accepted by Turkey, in order to accelerate the country s much-needed reform process in line with the EU acquis (European Commission 2012). However, given the fact that cooperation is going to go forward in areas where the negotiation chapters are still officially blocked, implementation of critical reforms and extension of freedoms will likely continue to be problematic. European skepticism about whether Turkey should be embraced as a member of the EU fueled by an ongoing debate over the implications of the growing Muslim population and the impact Turkish accession would have on Europe s future continues, which leads to an ambivalence to-

52 Atila Eralp and Zerrin Torun ward the EU by the current Turkish leadership and a growing disillusionment with the EU among larger segments of Turkey s public (Morelli 2011, 11). As of 2012, as a result of various blockages in accession negotiations there are only three chapters left (public procurement, competition, and social policy and employment) that can be opened. However, there are big costs associated with reforms in these areas, which made previous negotiating countries wait until the EU membership prospect was closer. For instance, with regard to the chapter on competition policy, Turkey failed to fulfil the opening benchmark on the transparency of its state aids system, whereas the social policy and employment chapter requires a complete transformation of the Turkish public personnel regime. Requirements for these chapters are obviously more difficult to undertake, especially at a time of global financial crisis. As a result, Turkey currently has no chapters to work on, and the sustainability of the EU-Turkey relationship rests on developments within the framework of the positive agenda without any change to the official blockades in the accession negotiations. Nonetheless, stalemates in Turkish accession negotiations are hard to overcome, as the country s prospect for membership has never seemed so distant before. As Thomas Diez points out as well, ambiguity and fear dominate large parts of the public discourse on Turkey-EU relations. There is the ambiguity of whether Turkey belongs to Europe or not, coupled with the ambiguity on the commitment of both sides (Diez 2011, 158). Whereas some of the variation in Turkish commitment to the EU integration resembles that in other candidate countries during their accession negotiations with the EU, the ambiguity in the EU commitment toward Turkish membership is peculiar. Although the enlargement toward Eastern and Central Europe did not enjoy enthusiastic support from all member states, none openly opposed it. Moreover, current candidate countries including Turkey do not benefit from the sense of historical and political imperative that informed the European Commission s activities in pulling Central and Eastern European countries toward the EU at a faster pace. The opinion within the European Parliament is also fragmented, with possible negative effects on the approval of a future treaty of Turkish accession (İçener et al. 2010, 211, 214). Therefore, while the resolution of the Cyprus problem or the recent change of government in France may ease Turkish accession negotiations, questions within Turkey on the credibility of the prospect of the EU membership is likely to remain as a negative influence on Turkey s political reforms and policies. In other words, in this environment, while the EU needs to take immediate precautionary measures to address problems in accession negotiations, it also appears crucial for the EU member states to decide on what the definition of Europe is or where the final borders of Europe lie, since only positive or inclusive answers to these questions can lead to full credibility of the EU in Turkey. Given the low prospect of a common EU [2.28]

53 Europeanization of Turkish Politics and Policies answer to these questions in the near future, it seems that the impact of the EU on Turkish politics and policies will continue to be a story of tainted Europeanization characterized by ups and downs. [2.29] CONCLUSION [2.30] As the sections above demonstrate, the EU impact on Turkish politics and policies has been greater when the prospect of carrying the relations to a further level was credible and clear. Developments until the opening of accession negotiations in 2005 show that the EU impact was strong during this period because of the high motivation provided by the prospect of opening accession negotiations if reforms were carried out. After 2005, ambivalent and negative messages from the EU and its member states influenced the process of the EU-induced reform in Turkey negatively. A clear majority of EU citizens reject the idea of Turkey joining the EU, on the basis of factors such as the economic benefit of Turkish accession, cultural differences, political ideology, and general attitudes toward the EU (Gerhards and Hans 2011). Based on these factors, calls for a privileged partnership or special relationship envisage a relationship between Turkey and the EU that would exclude Turkey from participating in the EU s political decision making and offer little added value to its present status with regard to the EU. Moreover, it is hard for any country to take upon itself the large number of difficult reforms needed to adopt the EU acquis communautaire if the objective is not full membership. As in other negotiations, there is of course no guarantee that this goal can be reached (Independent Commission on Turkey 2009, 44). Nonetheless, deviation from the principle of pacta sunt servanda and calls for alternative relationship models on the basis of an exclusionary definition of European identity increase popular mistrust toward the prospect of Turkish EU membership and make it hard for domestic pro-eu Turkish actors to even make references to the EU in order to justify changes in the Turkish political, legal, and economic systems. As a result of this peculiar interaction between domestic and EU-related factors, one can safely argue that the overall reform process in Turkey, including further democratization and solution of problems such as the Kurdish issue and improvement of conditions of the Alevi community, is increasingly becoming decoupled from the European integration process. While attempts for improvements in these areas increasingly rely on domestic factors, 15 the process of decoupling is of great significance for the future of the EU s impact on Turkey and Turkish-EU relations. The EU impact on candidate countries is naturally dependent on domestic owners of the process who will promote, demand, and enact reforms in line with the standards of the EU. Although it is natural to expect the filtering of reforms in order to meet the EU conditionality through a candidate country s sociocultural con-

54 Atila Eralp and Zerrin Torun text, as exemplified by the lingering problem of reinforcement of gender equality in Turkey, the speed and depth of reforms also depend on the credibility of the EU in terms of the prospect of membership. Given these problems, informed observers of Turkish-EU relations who are concerned about the lack of effective mechanisms for sustaining bilateral communication and cooperation increasingly call for using informal strategic dialogue mechanisms between the parties, particularly on foreign and security policy. 16 Nonetheless, informal mechanisms are unlikely to produce the desired impact of facilitating cooperation in the area of foreign and security policy, mostly because these do not offer Turkey the reassurance it needs. Instead, making a permanent structured and enhanced cooperation mechanism possible between Turkey and the EU appears to be a more promising alternative in order to revitalize the relationship, since only a formal mechanism may decrease the distrust, in particular within Turkey. Such a process, by not ruling out the prospect of membership, would not only make Turkey more amenable to the impact of the EU again in terms of democratic consolidation and the continuation of much-needed domestic reforms, but would also boost convergence between the two parties in foreign and security policy. This can even satisfy the EU member states that officially oppose Turkish membership, as it will bring Turkey close to a position short of membership and delay the question without a negative Turkish reaction. 17 However, not only such a scheme but even an informal mechanism to revitalize the relationship requires finding a way to overcome the Cypriot veto or the resolution of the problem on the island. Regardless of the resolution of the Cyprus problem or the recent change of government in France, which may breathe life into Turkish accession negotiations, questions within Turkey on the credibility of the EU with regard to its membership prospect are likely to remain as a negative influence on Turkey s political reforms and policies. Therefore, in addition to the need to take immediate precautionary measures to address problems in accession negotiations, it appears crucial for the EU member states to decide in favor of an inclusive definition of Europe and where the final borders of Europe lie, since only positive answers to these questions will secure Europeanization in Turkey. Unfortunately, given the low prospect of a common EU answer to these questions in the near future, it seems that the impact of the EU on Turkish politics and policies will continue to be characterized by ups and downs, even if solutions to problems in accession negotiations are found. [2.31] [2.32] NOTES [2.33] 1. Prof. Dr. Atila Eralp and Dr. Zerrin Torun, Department of International Relations, Middle East Technical University, eralp@metu.edu.tr and zerrin@metu.edu.tr.

55 Europeanization of Turkish Politics and Policies [2n1] 2. For a similar conclusion with regard to the EU impact on candidate countries during the Eastern enlargement of 2004, see Sedelmeier [2n2] 3. For an analysis of the history of Turkey-EU relations, see Eralp [2n3] 4. See also Eralp and Torun 2011a. [2n4] 5. For a detailed analysis of the EU impact on Turkish civil society, see Diez et al [2n5] 6. For extended analysis of different periods in this area of reform, see Duman and Tsarouhas 2006 and Bilgiç [2n6] 7. For similar observations, see Schemmelfennig et al and Hale [2n7] 8. The eight chapters that are suspended due to the problems in implementing the Additional Protocol are free movement of goods, right of establishment and freedom to provide services, agriculture and rural development, fisheries, financial services, transport policy, customs union, and external relations. [2n8] 9. Chapters unilaterally blocked by Cyprus are free movement of workers, energy, judiciary and fundamental rights, education and culture, and common foreign and security policy. [2n9] 10. For an example, see Sözen 2010, 85. [2n10] 11. For analyses of Europeanization of Turkish foreign policy, see Terzi 2010 and Müftüler-Baç [2n11] 12. This leads some experts to advance the argument that the EU should build a special relationship with Turkey in the area of foreign policy outside the process of its EU accession; for an example see Krastev and Leonard [2n12] 13. Chapters vetoed by France are agriculture and rural development, economic and monetary policy, regional policy and coordination of structural instruments, foreign, security and defense policy, and financial and budgetary provisions and institutions. [2n13] 14. For further analysis of this consequence, see Alessandri 2010 and Kalaycıoğlu [2n14] 15. For extended and recent analyses on these issues, see Kirişçi 2011 and Çarkoğlu and Bilgili [2n15] 16. For examples see Eekelen 2009, Grabbe and Ülgen 2010, and Barysch [2n16] 17. For measures to revitalize the significance of the EU for Turkish reforms, see Eralp and Torun, 2011b. [2.34] REFERENCES Akşit, Sait, and Costas Melakopides The Influence of Turkish Military Forces on Political Agenda-Setting in Turkey, Analysed on the Basis of the Cyprus Question. Briefing Paper for the European Parliament s Committee on Foreign Affairs. European Parliament, Brussels, February. Alessandri, Emiliano Democratization and Europeanization in Turkey after the September 12 Referendum. Insight Turkey 12(4): Aydın, Mustafa, and Sinem A. Açıkmeşe Europeanization through EU Conditionality: Understanding the New Era in Turkish Foreign Policy. Journal of Balkan and Near Eastern Studies 9(3): Barysch, Katinka Turkey and the EU: Can the Stalemate Be Avoided? Policy Brief, Center for European Reform, December. Bilgiç, Tuba Ünlü The Military and Europeanization Reforms in Turkey. Middle Eastern Studies 45(5): Çalış, Şaban H Dış Politikada Eksen Kaymıyor, İstikamet Düzeliyor. Habibe Özdal et al. (eds.), Mülakatlarla Türk Dış Politikası, Volume 2, Ankara: USAK Yayınları. Çarkoğlu, Ali, and Nazlı Çağın Bilgili A Precarious Relationship: The Alevi Minority, the Turkish State, and the EU. South European Society and Politics 16(2):

56 Atila Eralp and Zerrin Torun Çelenk, Ayşe Aslıhan Europeanization and Administrative Reform: The Case of Turkey. Mediterranean Politics 14(1): Champion, Marc Erdoğan: Two Things Will Be Voted on Here, Excerpts from the Wall Street Journal s Interview with Prime Minister Recep Tayyip Erdoğan. 9 September, SB html. Diez, Thomas Ethical Dimension: Promises, Obligations, Impatience and Delay: Reflections on the Ethical Aspects of Turkey-EU Relations. Armağan Emre Çakır (ed.), Fifty Years of EU-Turkey Relations: A Sisyphean Story, New York: Routledge. Diez, Thomas, et al File: Turkey, Europeanization and Civil Society. South European Society and Politics 10(1): Duman, Özkan, and Dimitris Tsarouhas Civilianization in Greece versus Demilitarization in Turkey. Armed Forces and Society 32(3): Eekelen, Willem F. Van Transitional Arrangements as Milestones towards EU Enlargement. Turkish Studies 10(1): Eralp, Atila The Role of Temporality and Interaction in the Turkey-EU Relationship. New Perspectives on Turkey 40: Eralp, Atila, and Zerrin Torun. 2011a. El impacto de la UE en Turquia: la historia de una europeización empañ ada (The Impact of the EU on Turkey: A Story of Tainted Europeanization). Culturas 11: Eralp, Atila, and Zerrin Torun. 2011b. Turkey-EU Relations: Just Another Impasse? Dimitar Bechev (ed.), What Does Turkey Think?, London: European Council on Foreign Relations (ECFR). European Commission Negotiating Framework for Turkey. October, Brussels. European Commission Communication from the Commission to the Council and the European Parliament Enlargement Strategy and Main Challenges November. European Commission Positive EU-Turkey Agenda Launched in Ankara, MEMO/ 12/359, Brussels, 17 May, available at Gerhards, Jürgen, and Silke Hans Why Not Turkey? Attitudes towards Turkish Membership in the EU among Citizens in 27 European Countries. Journal of Common Market Studies 49(4): Grabbe, Heather, and Sinan Ülgen The Way Forward for Turkey and the EU: A Strategic Dialogue on Foreign Policy. Policy Outlook, Carnegie Endowment for International Peace, December. Hale, William Human Rights and Turkey s EU Accession Process: Internal and External Dynamics, South European Society and Politics 16(2): İçener, Erhan, and Zeynep Çağlıyan-İçener The Justice and Development Party s Identity and Its Role in the EU s Decision to Open Accession Negotiations with Turkey. Southeast European and Black Sea Studies 11(1): İçener, Erhan, et al Continuity and Change in the European Union s Approach to Enlargement: Turkey and Central and Eastern Europe Compared. Southeast European and Black Sea Studies 10(2): Independent Commission on Turkey Turkey in Europe: Breaking the Vicious Circle. 2nd report, September. Kalaycıoğlu, Ersin The Turkish-EU Odyssey and Political Regime Change in Turkey. South European Society and Politics 16(2): Kardaş, Şaban Turkey: Redrawing the Middle East Map or Building Sandcastles. Middle East Policy 17(1): Kirişçi, Kemal The Kurdish Issue in Turkey: Limits of European Union Reform. South European Society and Politics 16(2): Krastev, Ivan, and Mark Leonard The Spectre of a Multipolar Europe. London: European Council on Foreign Relations (ECFR), October. Kristiansen, Wendy Turkey s Soft Power Successes. Le Monde Diplomatique (English edition), 2 November.

57 Europeanization of Turkish Politics and Policies Kulahci, Erol EU Political Conditionality and Parties in Government: Human Rights and the Quest for Turkish Transformation. Journal of Balkan and Near Eastern Studies 7(3): Morelli, Vincent European Union Enlargement: A Status Report on Turkey s Accession Negotiations. CRS Report for Congress RS22517, Congressional Research Service, 15 March. Müftüler-Baç, Meltem Turkey s Political Reforms and the Impact of the European Union. South European Society and Politics 10(1): Müftüler-Baç, Meltem Turkish Foreign Policy, Its Domestic Determinants and the Role of the European Union. South European Society and Politics 16(2): Nas, Tevfik F Economic Dimension: The Turkish Economy from the 1960s to EU Accession. Armağan Emre Çakır (ed.), Fifty Years of EU-Turkey Relations: A Sisyphean Story, New York: Routledge. Öniş, Ziya Conservative Globalists versus Defensive Nationalists: Political Parties and Paradoxes of Europeanization in Turkey. Journal of Southern Europe and the Balkans 9(3): Patton, Marcie J AKP Reform Fatigue in Turkey: What Has Happened to the EU Process? Mediterranean Politics 12(3): Polat, Rabia Karakaya How Far Away from Politics of Fear? Turkey in the EU Accession Process. Lucie Tunkrová and Pavel Saradin (eds.), The Politics of EU Accession, London: Routledge. Schemmelfennig, Frank, et al Costs, Commitment and Compliance: The Impact of EU Democratic Conditionality on Latvia, Slovakia and Turkey. Journal of Common Market Studies 41(3): Sedelmeier, Ulrich Europeanisation in New Member States and Candidate States. Living Review in European Governance 6(1), lreg Sözen, Ahmet The Cyprus Question in Turkey-EU Relations. Lucie Tunkrová and Pavel Saradin (eds.), The Politics of EU Accession, London: Routledge. Spiegel Interview with Turkish Prime Minister Recep Tayyip Erdoğan. 16 April, Stivachtis, Yannis, and Stefanie Georgakis Changing Gender Attitudes in Candidate Countries: The Impact of EU Conditionality The Case of Turkey. Journal of European Integration 33(1): Terzi, Özlem The Influence of the European Union on Turkish Foreign Policy. Surrey, UK: Ashgate. Tocci, Nathalie Elite Opinion Dimension behind the Scenes of Turkey s Protracted Accession Process: European Elite Debates. Armağan Emre Çakır (ed.), Fifty Years of EU-Turkey Relations: A Sisyphean Story, New York: Routledge. Torun, Zerrin Identity: Stumbling-Block in Turkish Membership to the European Union. Thilo Bodenstein and Michael Bolle (eds.), After Eastward Enlargement: Political Economy Perspectives on a New Europe, Berlin: Berliner Eissenschafts- Verlag. Tunkrová, Lucie Democratization and EU Conditionality: A Barking Dog That Does (Not) Bite? Lucie Tunkrová and Pavel Saradin (eds.), The Politics of EU Accession, London: Routledge.

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59 THREE The Credibility of EU Human Rights Conditionality Turkey s Case Zerrin Savaşan 1 [3.0] Turkey was one of the earliest applicants for membership in the European Community. Indeed, making its application to join the EEC in 1959, it chose to cooperate with the Community nearly fifty-two years ago. It became an associate member with the possibility of joining the EU with the Agreement Creating an Association (Ankara Agreement, Article 28), which was signed on 12 September 1963 and came into force in After twenty-three years from the agreement, on 14 April 1987, Turkey applied for Community membership under the Motherland Party, which took power after free elections. [3.1] The application was refused by the Community on the grounds of its economic and political situation, poor relations with Greece, the conflict with Cyprus, and particularly, the lack of addressing the protection of human rights. Thus, before the adoption of the Copenhagen Criteria by the EU in the Copenhagen European Council in 1993, with Turkey s application to the Community for membership, the protection of human rights began to have a very significant place in Turkey-EU relations, even it was not under the name of conditionality. [3.2] Since the adoption of human rights explicitly as a membership conditionality within the Copenhagen Criteria and specifically since the assessment of the criteria through regular reports, Turkey has made important progress in the protection and improvement of human rights in the country. The EU human rights conditionality (EU HRC) policy thus has been

60 Zerrin Savaşan the most crucial impetus for Turkey s improvement in the human rights field. This chapter aims to analyze the effect of the credibility of EU HRC in human rights reforms in Turkey. For this purpose, it first gives a brief background of EU HRC. Then it focuses on the credibility of EU HRC. Furthermore, it scrutinizes Turkey s case in two dimensions of the credibility of EU HRC: determinacy, clarity, and consistency of the conditions; and certainty of the promise of membership. In the context of the first dimension, this chapter reviews basic documents defining and elaborating the conditions the Copenhagen Criteria, Agenda 2000, regular reports (RRs), and accession partnership documents (APDs) to find out whether the EU qualifies determinacy, clarity, and consistency of the conditions. The chapter also illustrates the main shortcomings regarding the first dimension of credibility, giving examples from the provisions in the mentioned documents, particularly in the regular reports. With respect to the second dimension, it examines the impact of the certainty of the promise of future EU membership to Turkey based on three critical breakthroughs: the periods after the Luxembourg summit, the Helsinki Summit, and the beginning of negotiations as open-ended. Based on its findings, the chapter argues that, in Turkey s case, the first dimension of credibility does not play an important role in the reform process of Turkey, while the second dimension has had an important influence. [3.3] EU HUMAN RIGHTS CONDITIONALITY: A BRIEF OVERVIEW Historical Evolution The EU applies some instruments to strengthen human rights not only for its member states, but also for third countries, through stipulating human rights as an objective of the common foreign and security policy (CFSP), applying human rights clauses in agreements with third countries (by introducing trade preferences and assisting these countries on human rights in the development policy), stipulating protection of human rights as part of differentiated conditionality (Kahraman 2005, 9, 25) in the neighborhood policy, and lastly as a membership conditionality in the enlargement policy (Savaşan 2006, 53 58). Human rights as a membership conditionality in the EU attained priority in the 1990s, particularly with the declaration of the Copenhagen Criteria. However, it is possible to argue that it has been always a constant for accession to the Union (Fierro, 2003, 137). In fact, its emergence and its roots can be traced back to the 1970s, even to the Birkelbach Report of 1962 on the question of EU membership. As a result of the Birkelbach Report, the enlargement acquis has become structured along two main dimensions: one (regulative) emphasizing the existence of a set [3.4] [3.5] [3.6] [3.7]

61 The Credibility of EU Human Rights Conditionality of rules of obligations (the acquis communautaire the treaties, the institutions, the body of legislation, the international agreements, the accession treaties, the political goals or acquis politique, and the ruling of the European Court of Justice (ECJ) 2 which candidates had to accept; and the second (normative), specifying the values that the candidates political systems had to embody and preserve (democracy and human rights, as defined by the Council of Europe, European Convention of Human Rights [ECHR]) (Torreblanca 2003, 13). In 1964, it was used as a reference document during the Council s deliberations on the response to be given to Spain s application for accession to the Community. Indeed, the European Community rejected Spain s application to join the Community in 1967, because of the fact that only those states that guarantee democratic practices and respect for human rights and fundamental liberties could be admitted into the Community. It also froze its association with Greece because of the existence of a military coup in that country. 3 Thus, the report represented the initial signals of political conditionality (implied or implicit conditionality) (Williams 2004, 55), which would begin to be applied to the applicant states explicitly with the Copenhagen Criteria. [3.8] Following the Birkelbach Report, through some other nonbinding documents (such as the Document on European Identity [1973], the Joint Declaration by European Parliament [1977], and the Declaration on Democracy [1978]), the importance of human rights and also democratic principles in the Community was reconfirmed. In brief, via these documents, the signals of the criteria that would be made preconditions for membership commenced to be given even in these years. [3.9] When it came to the 1980s, the issue of human rights was first introduced into the treaties with the Single European Act (SEA) of The SEA, in its preamble, stressed the determination of the Community to work together to promote democracy on the basis of the fundamental rights. Through the Treaty on European Union (TEU) of 1992, respect for human rights was first incorporated in a treaty article (Article F(2), Article 6(1)) as an obligation for the Community. In 1993, via the adoption of the Copenhagen Criteria in the Copenhagen European Council, it was made clear that the application to the Union for being a member involved the acceptance of and respect for the human rights principles adopted by the EU. Then, the Treaty of Amsterdam (ToA), Article 49, adding a new condition to the TEU Article O, essentially enshrined the principles set out in Article 6(1) (after the Treaty of Lisbon, Article 2) respect for the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law 4 as requirements for membership and made them part of EU treaty law. The ToA thus formalized the political conditions of membership, with an expectation of minority rights (Bartels 2005, 52; Nowak 1999, 692). 5

62 Zerrin Savaşan THE CONCEPT OF HUMAN RIGHTS CONDITIONALITY Conditionality, in very narrow terms, can be defined as an unequal relationship between the donor and the recipient ; this is also called aid conditionality (Fierro, 2003, 94). However, this kind of definition is not adequate for explaining the EU HRC applied to the applicant states in the accession process. It is necessary to seek alternative definitions of the term to define it in accordance with EU enlargement policy. In this definition, there should be two parties that are not equal in power. This is because, in this relationship, one subject determines specific conditions, requires the other party to meet them, and checks whether it meets them or not. The other party has to fulfill the conditions to receive the carrot (or incentive, reward) of the relationship, like technical-financial assistance, recognized as a part of EU, and ultimately EU membership, the highest and the most effective reward ( positive conditionality ) (Fierro, 2003, 100). On the other hand, if it does not fulfill the conditions, negative conditionality (Fierro, 2003, 100) occurs the stick of the relationship. Thus, the other party is either deprived of the benefits of the relationship (of EU membership by the EU) or subjected to suspensions or postponements until the requirements are met. However, it should be emphasized that the EU has never used the suspension of membership entirely, but rather has preferred to delay the opening of negotiations and the concluding of accession agreements or delay granting the financial aid to stimulate the applicants to meet the requirements. Next to the carrot and stick, based on the asymmetric interdependence (Vachudova 2005, 109) between the EU and applicants, the EU can also rely on political dialogue, which can provide the exchange of views on the related issues of enlargement and the conditionality process (Fierro, 2003, 102). However, as the applicant is the weaker side of the relationship in this process, dialogue generally is explained as the least effective method, or a less effective method than carrots and sticks. Finally, due to the fact that fulfilling the conditions is a prerequisite for being an EU member and entering into a membership relationship, it establishes an ex-ante conditionality (not an ex-post conditionality ) (Fierro, 2003, 98). With all these in mind, human rights conditionality applied to the applicant states in the accession process can be defined as an ex-ante instrument of the EU in which the applicant state, to attain the benefits of the relationship and not to be subjected to its sticks, has to satisfy certain conditions regarding full respect for human rights and fundamental freedoms (Tocci 2007, 9; Barnes and Randerson 2006, 352). [3.10] [3.11] [3.12] [3.13]

63 The Credibility of EU Human Rights Conditionality [3.14] THE CREDIBILITY OF EU HUMAN RIGHTS CONDITIONALITY [3.15] In order to apply HRC in practice, the EU develops deliberate policies, that is, deliberate conditionality, to maintain its active leverage (Vachudova 2005, 63). It is then necessary to figure out under which circumstances this leverage can be effective, compliance with entry conditions can be made more attractive, and what the role of the credibility of EU conditionality can be in this effectiveness and attractiveness. The theoretical models developed by scholars like Schimmelfennig and Sedelmeier can shed light on the way toward analyzing these questions. [3.16] In one of their articles, Schimmelfennig and Sedelmeier discuss three models that can be helpful to explain the EU s rule transfer to the CEECs and its effectiveness (Schimmelfennig and Sedelmeier 2004). These are the lesson-drawing model, the social learning model, and the external incentives model. [3.17] In the lesson-drawing model, there is no need for EU incentives or persuasion. If these rules are adequate to solve domestic policy problems effectively, then they are adopted by the target state. [3.18] In the social learning model, in contrast to rational models adopting logic of consequences, due to its basis in social constructivism (Checkel 2001), logic of appropriateness (March and Olsen 1998) is adopted. So, actors do not calculate costs and benefits of their behaviors, but they evaluate the applicable norms and other actors expectations, and find the right one to do. That is, a state adopts EU rules if it is persuaded of the appropriateness of EU rules. Legitimacy of the EU conditions, identification of the target state and society with the EU, and absence of conflicting domestic rules (resonance of EU requirements with preexisting norms, values, and practices in the applicant state) are the most important factors that affect the EU s persuasive power. To this model, for the effectiveness of EU conditionality, the level of perceived legitimacy and resonance of the norms and the identification of the candidate state with the EU should be high enough to reduce the resistance and to increase the support of the conditionality. [3.19] The third model, the external incentives model, is a rationalist-intergovernmental bargaining model in which the actors of the relationship bargain to maximize their own powers based on their self-interest. The main strategy for bargaining is reinforcement by reward (Schimmelfennig, Engert, and Knobel 2003, 496; Schimmelfennig and Schwellnus, 2006, 3; Schimmelfennig and Sedelmeier 2004, 670). This is a rewardsbased strategy (Schimmelfennig 2007, 139). The factors in this model that influence meeting EU conditions or resistance toward them are the size of the reward, the credibility of EU conditionality, and domestic costs of conditionality. These factors imply first that the size of the reward should exceed the domestic costs of compliance with the conditions. Moreover, conditionality should be credible, as its existence and

64 Zerrin Savaşan working is bound to its credibility, as Rehn obviously has put forward in 2006 (Rehn 2006, 15). Credibility here is revealed by Schimmelfennig and Schwellnus as both the determinacy, clarity and consistency of the conditions themselves, and the certainty of the promise of membership when the political conditions are fulfilled (and the threat of being excluded from the accession process if they are not fulfilled) (Schimmelfennig and Schwellnus 2006, 3). Of these models, the first one does not require EU incentives, even persuasion, so it is not possible to apply it to explain EU conditionality. The two others are both effective on EU conditionality, so they both should be taken into account when analyzing the impact of EU conditionality on candidate states. In each case, one of them can be more or less effective than the other according to the conditions of the candidate in question (see table 3.1). In Turkey s case, as mentioned by Schimmelfennig et al. (2003) and Schimmelfennig (2008), the external incentive model appears as the most effective model on conditionality. That is, the success of conditionality is mostly based on political cost-benefit calculations rather than social influence ( interdependence and societal salience ) and transnational mobilization (Schimmelfennig et al. 2003, 515). In fact, societal factors are ineffective or less effective when compared to cost-benefit calculation in domestic policies (Schimmelfennig and Sedelmeier 2004, 675; Schimmelfennig 2008). However, in this chapter, the aim is not to examine the relationship between these models and their influence on EU conditionality in Turkey s case, as there are already studies regarding this issue (as mentioned above). Here, the aim is to analyze how the credibility of EU HRC affects the reform process of human rights in Turkey, as suggested in the conception of credibility developed by Schimmelfennig and Schwellnus (2006, 3). In this conception, the credibility of EU conditionality is explained in two dimensions or elements: determinacy, clarity, and consistency of the conditions; and the certainty of the promise of membership (see table [3.20] [3.21] [3.22] [3.23] Table 3.1. Effective Factors on EU Conditionality External Incentive Model Social Learning Model External Size and credibility of EU Legitimacy of the EU s conditions factors rewards (regarding EU) Internal Domestic costs of Identification with the EU, and factors conditionality, the impact of resonance (regarding veto players candidate)

65 The Credibility of EU Human Rights Conditionality 3.2). This implies that the conditions of conditionality first of all should be certain, clear, and consistent, and that the candidate states should know that when they progress in fulfilling them, they will receive the reward full membership status promised by the EU. In addition, if they fail to comply with them, they should be aware that they will be excluded from EU membership. [3.24] THE CREDIBILITY OF EU HRC IN TURKEY S CASE [3.25] In this section, two dimensions of credibility will be examined in terms of Turkey, and on the basis of these dimensions, it will be asked how credibility has affected the reform process in the field of human rights in Turkey. [3.26] Determinacy, Clarity, and Consistency of the Conditions [3.27] While analyzing determinacy, clarity, and consistency of the conditions in Turkey-EU relations in terms of HRC, it is essential to examine the related documents that can give signals about the level of determinacy, clarity, and consistency of the conditions. The EP and Council reports; regular political dialogue meetings; the activities of the Association Council, the Association Committee, and the Secretariat-General for EU Affairs; and informal meetings on a number of issues, including human rights, between the EU and the Turkish authorities discuss of the problems and settlement of disputes related to the adoption of the legislation and also pertain to the supervision of the implementation on human rights. [3.28] Four documents the Copenhagen Criteria, Agenda 2000, regular reports, and Accession Partnership Documents (APDs) constitute the main structure used by the EU to evaluate whether Turkey meets or does not meet the accession requirements. So here, only these basic documents defining the conditions will be examined. [3.29] Copenhagen Criteria [3.30] As is generally known, the criteria for EU membership were elaborated by the 1993 Copenhagen European Council, moving the EU from the Table 3.2. Credibility of Conditionality Conditionality should be credible. This requires: 1. Determinacy, clarity, and consistency of the conditions 2. The certainty of the promise of membership and the threat of being excluded if the conditions are not fulfilled

66 Zerrin Savaşan acquis toward a wider set of reform and transformation targets (Steunenberg and Dimitrova 2007, 3). Countries with an accession perspective have to comply with the Copenhagen Criteria, including adherence to the aims of both economic and political union. 6 On the political side, they have to guarantee democracy, the rule of law, human rights, and the protection of minorities before they are entitled to enter accession negotiations. As a matter of fact, when the conclusions of the Copenhagen Council are examined, it is seen that the part related to relations with Turkey included no reference to the criteria (European Council 1993, 12). On the other hand, it did not exclude future candidates, as understood from the wording membership requires or candidate country has achieved. There was a general reference to being a member. In addition, the formalization of these political conditions of membership via the Treaty of Amsterdam (Article 49) obviously indicates the necessity of compliance by all candidate countries, including possible future ones. In brief, the criteria are valid for all candidate countries, for Turkey and for possible future candidates. Nevertheless, given the fact that the Copenhagen Criteria do not give a detailed check list (Börzel and Risse 2004, 12) of what should be done and what should not be done, it becomes necessary to analyze the other crucial documents, Agenda 2000 and regular reports, which can help fill the gaps of the criteria and help elaborate the details of the accession requirements. Agenda 2000 Agenda 2000, published by the Commission in 1997, reinforced the importance of the Copenhagen Criteria, as with its publication a more rigorous approach for compliance began to be raised in the EU (Bartels 2005, 53). This document elaborated the EU s two-part strategy for enlargement: accession negotiations with candidates, and the preaccession strategy designed to assist these countries in overcoming problems identified in negotiations. However, as it excluded Turkey and did not include a separate opinion on Turkey the first separate opinion on Turkey was with the 1998 Regular Report but only involved a separate section (Fierro 2003, 148), it is not possible to find further elaboration on the protection of human rights and what the EU means and wants from Turkey in this field. Still, it can be a useful document to draw conclusions looking to the views and evaluations of the Commission on the CEECs position regarding human rights. But, for specific examination on Turkey, it seems that the best way is to focus on regular reports and accession partnership documents. [3.31] [3.32] [3.33] [3.34] [3.35]

67 [3.36] Regular Reports The Credibility of EU Human Rights Conditionality [3.37] Beginning with the year 1998, Turkey s progress in the harmonization of the acquis communautaire, the implementation of the reforms and their effective functioning has begun to be examined by the Commission of the European Communities (CEC). In fact, through regular reports presented to the Council, the Commission ensures Turkey an assessment of the political Copenhagen Criteria (democracy, the rule of law, human rights, and minority rights) in conjunction with recommendations for improvement. [3.38] In the regular reports, under the heading of political criteria (beginning with 2001, it changes to enhanced political dialogue and political criteria ) (CEC 2001), in the subsection human rights and the protection of minorities, there are three main subheadings: civil and political rights (involving issues such as ratification of international human rights conventions, freedom of association and freedom of assembly, conditions in prisons, freedom of the press, freedom of religion, freedom of expression, torture, disappearances and extrajudicial executions, status of women, and capital punishment); economic, social, and cultural rights (involving the rights of the child, gender equality, trade unions, and cultural rights); and minority rights and protection of minorities. [3.39] It can be argued that with more detailed wording, the progress reports have contributed considerably to the enhancement of awareness in Turkey of the measures that should be taken to move forward in the accession negotiations and have reinforced Turkey s efforts for political and economic reform. However, as the reports have not elaborated which issues are more important than others and so have to be taken as priority and fulfilled in a shorter period, and also how such fulfillments are evaluated and how the fulfillment is measured through the regular reports, the European Council commences to establish accession partnership documents (APDs) to set the priorities in an attempt to provide Turkey a single framework for further progress. [3.40] The Accession Partnership Documents (APDs) [3.41] The APDs (adopted by the Council in 2001, 2003, 2006, and 2008) involve the Union s priority areas of concern, the financial means provided for Turkey to help it implement these priorities, and the conditions applied to this assistance. Indeed, in the APDs, a distinction is made between short-term priorities and medium-term priorities. Thus, they provide a framework further elaborating the Union s priorities for accession preparations and assisting Turkey in targeting its specific needs in meeting the requirements for membership. [3.42] For its part, Turkey is expected to draw up a national program (2001, 2003, 2008 programs) including a timetable and specific measures

68 Zerrin Savaşan through which it can make progress to address the priorities raised by the APDs as a first step, and also to address all other issues identified in the progress reports. The program prepared by Turkey is also subject to annual review by the Commission, so the APDs can be used as a benchmark against which to measure future progress. To conclude, it can be argued that, through these documents, specifically regular reports and APDs, the EU has made the conditionality framework for Turkey more tangible, consistent, and clear, overcoming the vagueness of Copenhagen Criteria that has, in general, resulted in the need of the Commission s interpretation (Barnes and Randerson 2006, 354). However, there are still question marks shortcomings on the determinacy, clarity, and consistency of conditions, and the EU s performance when applying this framework and using it to justify why Turkey has met or has not met the requirements. Prominent shortcomings include different standards in the reports, problems in the measurement of progress, and the provisions on minority rights and international human rights instruments. [3.43] MAIN SHORTCOMINGS ON THE DETERMINACY, CLARITY, AND CONSISTENCY OF THE CONDITIONS Reference to Different Standards One of the shortcomings that can be raised regarding the determinacy, clarity, and consistency of conditions is the repeated reference in the regular reports to different standards, such as EU standards, European standards, ECHR and case law of the European Court of Human Rights (ECtHR), the best practices in EU member states, or international standards, to compare to the situation in Turkey and to take it forward to those levels. However, it is substantially ambiguous whether there is a difference between EU and European standards or not; when there is a conflict between these different standards which one will prevail (if it will change depending on the present instance, then how it will be decided and who will decide it?); and how the best practices in EU member states can be determined, with which measures, and who will determine it. Measurement of Progress Until 2000, the aim of the regular reports has been explained as being to find out whether planned reforms referred to in the previous regular report have been carried out and to examine new initiatives. However, there has been no reference to how progress has been measured (Barnes and Randerson 2006, 354). From 2000 onward, it has been explicitly [3.44] [3.45] [3.46] [3.47] [3.48] [3.49]

69 The Credibility of EU Human Rights Conditionality underlined that progress has been measured on the basis of decisions actually made, legislation actually adopted, international conventions actually ratified (with due attention being given to implementation), and measures actually implemented (CEC 2000a). The APDs also list the priorities regarding necessary legislation, decisions, conventions, and measures in an obvious way. Yet they also underline that Turkey ultimately has to address all the issues identified in the progress reports, together with the priority areas mentioned in the APDs. In the regular reports, however, it is not possible to find an exact list of the decisions that have to be made, legislation that has to be adopted, international conventions that have to be ratified, and measures that have to be implemented. When the regular reports are examined, it becomes clear that the list can change from year to year. For example, the rights of Roma and internally displaced persons are mentioned first in the 2001 report under minority rights; there is no provision about them in previous reports. Access to justice under civil and political rights is seen first in the 2005 report (CEC 2005). Another point worth noting is the EU s further emphasis on freedom of the press and political pressure on the media in the 2009 report (CEC 2009). This emphasis continues in the last report as well. In addition, beginning specifically with the 2008 report (EC 2008), the EU also calls attention to the electronic media and finally, in the 2010 report (EC 2010), website bans as a source of concern. This situation raises the question whether there can be additional conditions and changing levels of emphasis on conditions according to the time and changing conditions. [3.50] Minority Rights [3.51] In the field of minority rights, first of all, it is essential to underline that the Treaty of Amsterdam (Article 49) transfers all Copenhagen political criteria into EU law, but with an exception of minority rights protection, not included in Article 6(1), TEU (Bartels 2005, 52; Nowak 1999, 692; Williams 2004, 66 71). Minority rights protection can be accepted in the group of principles common to Member States stated in Article (61), TEU, and thus can be admitted indirectly as a condition mentioned under Article 49, TEU. However, it is not possible to talk about common practices regarding minority rights in member states (de Witte and Toggenburg 2004, 68; Nowak 1999, 692). [3.52] Through the Treaty of Lisbon, the rights of persons belonging to minorities are added to the EU law (in Article 2, TEU) as one of the values on which the Union is founded. Nevertheless, the EU Fundamental Charter does not specifically involve minority rights, only refers to the nondiscrimination principle (Article 21), as the previous EU treaties did. [3.53] Consequently, the EU itself has no common definition of minority (collective or individualist formulation) and no substantial regulation in

70 Zerrin Savaşan the acquis communautaire regarding minority rights. It also has no single model that can be applied within the EU level and also within the Copenhagen Criteria (Schimmelfennig et al. 2003, 500; Schimmelfennig and Schwellnus 2006, 9 10; de Witte and Toggenburg 2004, 67 68) in the scope of human rights conditionality. However, it stipulates the protection of minority rights as a condition of accession, and as it does not formulate common standards in this field, it applies different conditions to different candidates. This situation raises the question of the EU s legitimacy and credibility. With respect to Turkey, in the regular reports, it is put forward that according to the Turkish authorities, under the 1923 Treaty of Lausanne, minorities in Turkey consist exclusively of non-muslim religious communities. The minorities associated in practice by the authorities with the Treaty of Lausanne are Jews, Armenians and Greeks. However, there are other communities in Turkey which, in the light of the relevant international and European standards, could qualify as minorities. (CEC 2004, 48) When the reports are examined, it becomes clear that this attitude the emphasis of the EU on the existence of other communities in Turkey that can be qualified as minorities turns to the necessity of granting specific rights to certain Turkish citizens on the grounds of their ethnic origin, religion, or language beginning with 2007 report. The report emphasizes that without prejudice to the Treaty, the Turkish authorities consider Turkish citizens as individuals having equal rights before the law rather than as individuals belonging to the majority or to a minority (CEC 2007, 21). The 2009 report gives up referring to the Lausanne Treaty and only asserts that Turkey s approach to minority rights remains restrictive (CEC 2009, 27). In addition, regarding minority rights, in the regular reports beginning with 2003 and even in the last report (2010) Turkey s reservation toward the UN International Covenant on Civil and Political Rights (ICCPR) regarding the rights of minorities, and the UN International Covenant on Economic, Social, and Cultural Rights (ICESCR), regarding the right to education, are also expressed as areas of concern. The Council of Europe Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages are indicated as the international conventions that should be signed by Turkey to ensure cultural diversity and promote respect for and protection of minorities in accordance with international standards. Of these conventions, according to the official website of the Council of Europe, the Charter for Regional or Minority Languages has not yet been signed by several EU members such as Belgium, Bulgaria, Estonia, Greece, Ireland, Latvia, Lithuania, and Portugal (Council of Europe 2010). The Council of Europe Framework Convention for the Protection of National Minorities [3.54] [3.55] [3.56] [3.57]

71 The Credibility of EU Human Rights Conditionality (FCNM), on the other hand, has not yet been signed by France (Council of Europe 2010). In addition, Turkey s reservation toward Article 27 of the ICCPR stems from applying the provision in accordance with the regulation in the Treaty of Lausanne of 24 July 1923 and its appendixes (United Nations 2010), and its reservation to the provisions of Article 13 (paras. 3, 4) of the ICESCR is because of applying the provision in accordance with the provisions under Articles 3, 14, and 42 of Turkey s constitution (United Nations 2010). [3.58] Consequently, as there is no detailed text about how it will be applied in the EU and member states while some of them (e.g., France) still refrain from signing and ratifying the major legal documents on minority rights like the FCNM it remains a vague area that should be elaborated. So, the ambiguity and inconsistency of the rules and their application is one of the most important reasons to question the credibility of some EU conditions. Nevertheless, in Turkey s case, the legitimacy of conditionality on minority rights has rarely been questioned in the country (Schimmelfennig et al. 2003, 515). [3.59] International Human Rights Instruments [3.60] In the regular reports (including the 2010 report), there are three other emphasized international legal documents on human rights that are indicated as areas of concern, namely, Optional Protocol to the UN Convention against Torture (OPCAT), the UN Convention on the Rights of Persons with Disabilities, and three unratified Protocols (4, 7, 12) to the European Convention on Human Rights (ECHR). [3.61] Of these, the UN Convention on the Rights of Persons with Disabilities entered into force on 18 December The Optional Protocol to the UN Convention against Torture was signed in September 2009, and it is expected to be ratified in the near future (United Nations 2010). Protocol 4 to the ECHR has not been ratified by Turkey yet, but neither has it been signed by EU member Greece nor ratified by another EU member, the UK (Council of Europe 2010). Protocol 7 has not been ratified yet by EU members the Netherlands and Germany, nor has it been signed by the UK (Council of Europe, 2010). The last one, Protocol 12, has not been ratified by ten EU members (Austria, Belgium, Germany, Greece, Hungary, Ireland, Italy, Latvia, Portugal, and Slovakia) and not even signed by seven EU members (Bulgaria, Denmark, France, Lithuania, Malta, Poland, and Sweden) (Council of Europe 2010). [3.62] Moreover, despite its references to international human rights treaties, the Union itself has not been a party to any of them, as it did not have a legal personality until the Treaty of Lisbon (ToL) granted legal personality to it for the first time (Article 47, TEU). Most important, the EU still has not acceded to the ECHR. The debate on the possibility of the Community s accession to the ECHR first emerged in the Community in the

72 Zerrin Savaşan 1970s. 7 After thirty-nine years, the ToL has finished the discussions related to the accession, as with its entry into force on 1 December 2009, the EU has become obliged to accede to the ECHR (Article 6/2 TEU and Protocol 8). However, given the procedure under Article 218(2), (3), and (8) of the Treaty on the Functioning of the EU (TFEU), 8 it seems that its accession may take several years. Last but not least, the lack of the definition of the concept of human rights at the EU level in a legally binding document and a legally binding human rights list can also be counted as one of the most important general criticisms made about the clarity of the conditions. Of these criticisms, regarding the latter one, it should be remembered that through the signing of the Charter of Fundamental Rights on 7 December 2000, 9 the EU has attained a human rights list. This Charter has the potential to reduce the longstanding uncertainty surrounding the identification of the human rights in the EU, since it can provide a uniform structure and also a credible and consistent system in human rights protection for the EU itself and for third countries (including candidates) (Pinelli 2004, 360; Savaşan 2006, 32 33). Moreover, it can give a detailed description and a better clarification about the political criterion of the Copenhagen Summit (Czuczai 2003, 109). However, it is now too early to give an exact decision about it. The practice in time will show whether it can carry out its potential. Yet, it seems extremely difficult, when the fact of the constitutional systems [of the member states] differing immensely from one another is considered (Haapea 2004, 86). To conclude, the examination of the basic documents that give signals about the level of determinacy, clarity, and consistency of the conditions shows that specifically after the publication of regular reports and APDs, the conditionality has become more determinant, clear, and consistent. However, it is still open broadly to the Commission s interpretation with its reference to different standards and vague measurement of progress. The provisions on minority rights and international human rights instruments also consist of inconsistencies, because of the lack of consistent attitudes toward them in the EU member states and at the EU level. The EU s lack of a common definition and a list of human rights (until the adoption of the Charter) also gives rise to questions on the consistency of the conditions. Given these shortcomings of the EU in determining clear and consistent conditions, it is normally expected that the question marks and doubts concerning them have affected negatively the credibility of EU s conditionality and also the reform process in Turkey. Yet, when Turkey s case is examined, it is seen that these shortcomings have not been seriously discussed and even not questioned in Turkey so far. So, it is possible to claim that the first element of credibility does not have much effect on the decrease or increase of reforms regarding human rights in Turkey. Its role in the credibility of EU conditionality as perceived in Turkey is little if any. [3.63] [3.64]

73 The Credibility of EU Human Rights Conditionality [3.65] THE CERTAINTY OF THE PROMISE OF MEMBERSHIP [3.66] Although the first dimension of credibility has not been in the agenda of Turkey so much in the EU accession process, the certainty of the promise of membership and the threat of being excluded from membership have been quite effective in the increase or decrease of the credibility of the conditionality in Turkey. [3.67] In fact, when the certainty of promise of membership increases, the credibility of the conditionality increases also. This can be understood from the reforms accelerating even in critical areas in these periods. On the other hand, when the certainty of membership decreases and the threat of being excluded increases, the credibility of the conditionality decreases. This can also be observed from the cessation or the reduction of reforms in the country. Particularly in domestically costly areas, no progress or less real progress is achieved in these periods. [3.68] This part of the study clarifies these arguments by examining the developments in Turkey that have significant implications for the certainty of the promise of membership: the periods after the Luxembourg Summit and the Helsinki Summit and the opening of negotiations as open ended. [3.69] The Period after the Helsinki Summit [3.70] For the former argument, the recognition of Turkey as a candidate state in the Helsinki Summit (European Council 1999, points 4, 12) can be submitted as an example, as it has dramatically encouraged Turkey to introduce a series of reforms to comply with the Copenhagen Criteria. Despite the existence of a hard coalition government of the Democratic Left Party (DSP, nationalist left), the Motherland Party (ANAP, conservative liberal), and the Nationalist Movement Party (MHP, nationalist right) in the country in that period, a number of priority objectives for reforms and legislation were adopted in September With respect to the enforcement of human rights, Turkey established a number of bodies (Law of 5 October 2000). These bodies are the Human Rights Presidency, the Human Rights Board, the Human Rights Consultation Boards, and the Investigation Boards (CEC 2001, 21). In October 2001, a constitutional reform aimed at strengthening the field of human rights was introduced. In the voting for a constitutional amendment, EU membership emerged as the single unifying theme among the political parties a first in Turkish history (Kardas 2002, 146). Through the amendment of its constitution, Turkey has made progress toward complying with the political criteria established for accession (European Council 2001, 3). In addition, a new Civil Code was adopted in November 2001 and three sets of reform packages (February, March, and August 2002) were adopted in this term. As a result of these reforms, the death penalty (except in wartime) was

74 Zerrin Savaşan abolished. In addition, the state of emergency, although extended for four months for two provinces (Şırnak and Diyarbakır), was lifted in two other provinces (Hakkari and Tunceli). Also, important measures were ensured for authorizing languages other than Turkish in radio, television, and education. The 2002 Regular Report welcomed this noticeable progress of Turkey. In three major areas covered by the 2000 Accession Partnership political, economic, and acquis criteria Turkey was found successful. Moreover, the determination of the political leaders to go toward alignment with the standards of the EU was appreciated by the EU. In addition, these reforms were found promising for the future as they demonstrate the will and the capacity of the Turkish political system to make progress even... in areas hitherto regarded as highly sensitive (CEC 2002, 30). Until 2004, under the Justice and Development Party ( AKP) government, which won victory in general elections on 3 November 2002, Turkey continued to take steps to fulfill the main requirements. For example, a reform monitoring group was established to ensure effective implementation of the reforms. Furthermore, the state of emergency was lifted in the remaining two provinces (Şırnak and Diyarbakır). Four more packages of political reform were adopted. They included amendments to different fields of legislation and a wide range of issues related to human rights and the protection of minorities, such as freedom of demonstration, freedom of expression, cultural rights, and civilian control of the military. It is also noteworthy that many regulations, circulars, and other administrative measures were issued by the associated authorities in order to ensure the implementation of the reforms in practice. In the case of international conventions on human rights, in June 2003 the Turkish Parliament ratified both the UN International Covenant on Civil and Political Rights and the UN International Covenant on Economic, Social, and Cultural Rights. May 2004 constitutional reforms, known as the eighth package, also addressed a number of issues related to human rights and included provisions strengthening gender equality, broadening the freedom of the press, recognizing the primacy of international law over national legislation in the field of human rights, and abolishing the death penalty according to Protocol 13 to the ECHR, which was signed in January Furthermore, a new Press Law was adopted in June 2004, and in July 2004 a new Law on Associations and a Law on Compensation of Losses Resulting from Terrorist Acts were adopted. In September 2004, Turkey adopted a new Penal Code, with more favorable provisions on a number of areas related to women s rights, discrimination, and torture. Several legal restrictions on the exercise of freedom of expression were lifted by the amendment of the Anti-Terror Law. The process of normalization was begun in the southeast, and a zero-tolerance policy toward torture [3.71] [3.72] [3.73]

75 The Credibility of EU Human Rights Conditionality was adopted. Many regulations and administrative measures were also issued to render the effective implementation of the legal acts in practice. [3.74] Overall, in a very short period after the Helsinki Summit, Turkey adopted two constitutional reforms (2001 and 2004), and eight legislative reform packages were adopted by Parliament between February 2002 and July These rapid and determined reforms in Turkey show that, even in immensely critical areas for the country, the increase in the certainty of membership provided the increase in the credibility of the conditionality. The more certain conditionality the EU provides, the stronger the enthusiasm in Turkey to facilitate the reform process. Whether there is a coalition government facing difficulties or a single-party government with more power to exercise, the promise of membership can form a basis for more struggle to meet with the EU conditions even in sensitive areas. [3.75] The Period after the Luxembourg Summit [3.76] The first example that can be given in support of the latter argument is the denial of Turkey s membership at the Luxembourg Summit on December Within three years of this summit, Turkey began negotiations on the Customs Union with the Community. During these negotiations, the European Parliament (EP) asked the Council to suspend the negotiations on the Customs Union, protesting against the trial of six members of the Turkish Parliament. After Turkey s constitutional reform package, Package for Democracy (involving the amendment of Article 8 of the Anti-Terror Law), 10 was adopted on 23 July 1995, and the EP s favorable vote, the Customs Union decision entered into force on 1 January However, it was then declared by the Commission that Turkey had to act decisively and quickly for improving human rights and fundamental freedoms in the country to prove its willingness to take steps towards closer ties with the European Union (CEC 1996, 9). Because of continuing violations of civil and political rights (mostly resulting from ongoing PKK terrorism), emphasis was given to the need for further improvement in the human rights situation for the development of future relations between the EU and Turkey. [3.77] Then, first, via the Agenda 2000 report of the Commission, Turkey was excluded from the enlargement process. While the report underlines that Turkey demonstrated its ability to adapt to the EU norms in many areas, it made no reference to Turkey's full membership objective. Then, following the Commission s Agenda 2000, Turkey s accession was denied at the Luxembourg Summit in The Community reconfirmed Turkey s eligibility for membership (European Council 1997, point 31); however, it again excluded it. This attitude of the Community, confirming Turkey's eligibility for membership but at the same time, excluding it from the enlargement process, was seen as a contradiction by many

76 Zerrin Savaşan groups in Turkey (EU-Turkey News Network 2006). In addition, CEECs and also the Greek Republic of Cyprus were included in the process in this summit. It was also decided to open accession talks with Greek Cyprus on behalf of the whole island, thus completely disregarding the opinion of Turkish Cypriots (Sözen 2005, 288). As a reaction to this decision, Turkey declared that it would not accept the EU as a third party regarding the Cyprus conflict or Turkey-Greece disputes remaining outside the contractual context of the membership process. Furthermore, it stated that it would not communicate with any EU official until the EU changed its attitude towards Turkey (Sözen 2005, 288). Finally, it stressed that it would start integrating Turkish Republic of Northern Cyprus with Turkey in the same way the EU proposed to integrate the Republic of Cyprus (Sözen 2005, 288). Despite these uneasy relations with the EU, Turkey was still kept on a process of reform, but due to the threat of delay of membership, with less trust toward the EU and with less enthusiasm. In that period, the Turkish Constitution was amended, covering a wide range of issues, such as improving human rights, strengthening the rule of law, and restructuring democratic institutions. However, on the sensitive areas for the country, no progress or very little progress could be accomplished. For instance, despite the arrest of Kurdistan Workers Party (PKK) so-called leader Abdullah Öcalan, there was no progress on the Kurdish question. Radio and television broadcasting in any of the Kurdish languages was officially not allowed, and using them in political communication or education was forbidden. Emergency legislation remained in force in six provinces. Because of exceptional measures under the state of emergency, the restrictions on the normal exercise of civil and political rights guaranteed by law continued. The implementation of the law on police custody gave rise to many cases of torture. So, the situation concerning civil and political rights in Turkey did not improve significantly, and concerns about torture, disappearances, and extrajudicial executions continued. Moreover, freedom of expression was widely restricted, mainly on account of the regular application of the Anti-Terror Law and certain administrative measures taken in the aftermath of Öcalan s arrest, forbidding the use of certain terminology in relation to the Kurdish question in press releases and publications by public institutions and organizations. Regarding the freedom of the press, cases of harassment and police violence against individual journalists continued to be reported by domestic and international human rights organizations. The situation regarding freedom of association and freedom of assembly was not advanced, and several branches of the Turkish Human Rights Association were closed by the authorities either temporarily or for an indefinite period. With respect to freedom of religion, practical bureaucratic restrictions affecting, for example, the ownership of premises and expansion of activities continued. [3.78] [3.79]

77 The Credibility of EU Human Rights Conditionality [3.80] The Period after the Opening of Negotiations [3.81] Negotiations of Turkey with the EU were opened in October However, it was declared that it would be an open-ended process the outcome of which cannot be guaranteed beforehand (Negotiating Framework 2005, 1), unlike the negotiation framework for any other country. So, Turkey s way with the EU seemed to be more stages ( gate-keeping ) (Grabbe 2001, ) to comply with and less willingness of the EU to commit to a date for accession (Steunenberg and Dimitrova 2007, 14). [3.82] Another noteworthy issue is that the argument on the absorption capacity criterion, set out in the Copenhagen European Council (1993), began to be raised more often in the EU after Turkey s membership came into the EU agenda. Furthermore, a few member states have offered alternatives to Turkey s EU membership such as privileged partnership status (offered by Austria and Germany) or membership in the Mediterranean Union (offered by France). Moreover, both Austria and France have argued for holding a referendum on Turkey s accession because of its specific characteristics. 12 In October 2010, the Austrian Freedom Party, Belgium s Flemish Interest Party, the Sweden Democrats, the Danish People s Party, and others held a meeting on the EU s situation after the Lisbon Treaty, in which Turkey s bid for EU membership was discussed (Levitz 2010). Austrian Freedom Party chief Heinz-Christian Strache explicitly demonstrated that his party and its counterparts would put together a Europe-wide citizens initiative (a Europe-wide referendum) to block Turkey s accession on the basis of Article 11(4), TEU (in accordance with Article 24, TEU), as it poses a threat to EU identity. [3.83] Both politicians in the EU and also public opinion are, to a large extent, against Turkey s EU membership. In fact, to the Eurobarometer, only 11 percent of the respondents choose to support Turkey strongly, and 34 percent fairly, so a total of 45 percent (CEC 2008, QA45). However, on the other hand, again a total of 45 percent (fairly opposed 22 percent, strongly opposed 23 percent) are against, even if Turkey fulfills all requirements of the EU. That is, nearly half of the EU continues to be against Turkey s membership and the majority are still critical of Turkey s future accession (CEC 2000b, 54; CEC 2008, QA44.12). [3.84] All these negative developments have damaged the certainty of the promise of membership and have resulted in gradually increasing distrust of the EU in Turkey. Skeptical views toward the EU gradually increased from 2002 to According to a survey conducted between May 18 and June 4, 2002, in Turkey, while 64 percent of Turkish citizens indicate they would vote in favor of full EU membership, only 30 percent were against it (Çarkoğlu 2003, 173). This shows that after the Helsinki decision granting candidate status to Turkey, high expectations and optimism about possible full membership raised the level of support of EU

78 Zerrin Savaşan membership in the country. However, to the Eurobarometer, after the opening of accession negotiations as open-ended, the percentage of people with a positive image of the EU fell from 60 percent to 43 percent, while the percentage of people trusting the EU had fallen from 50 percent in autumn 2005 to 35 percent in spring 2006 (CEC 2006, 15, 19). After negotiations on eight chapters were frozen on 11 December 2006, this distrust has augmented and the objective and technical character of conditionality has also begun to be discussed. So in 2010, in Turkey, trust in EU institutions was only 27 percent, while not trust was 60 percent (EC 2010, QA14.4). Consequently, all the above-mentioned factors have resulted in the decrease of the certainty of EU membership in Turkey. However, Turkey has continued its progress in the protection of human rights, despite the decrease of enthusiasm for the reform process. It has improved its situation in the ratification of international human rights instruments and in the execution of ECtHR judgments; in the decline of the cases of torture and ill-treatment; in freedom of expression, freedom of religion, and women s rights. The amendment of Article 301 (which introduces a permission requirement by the minister of justice in order to launch a criminal investigation on the basis of Article 301) is also another positive step in broadening freedom of expression. Its usage is no longer systematic, and there is a decline in prosecutions compared with previous years ( report). Regarding the progress on ensuring compliance with legal safeguards to prevent torture and ill-treatment, the Turkish government requested the publication of the Council of Europe s Committee for the Prevention of Torture (CPT) report (Council of Europe, 2010b) and of its response (Council of Europe 2010), and on 9 July 2010 it was published. Even if it was slightly criticized as not preceded by a consultation process involving political parties and civil society at large in the 2010 report (EC 2010b, 8), the constitutional reform package has been welcomed warmly since it has addressed a number of priorities of the Accession Partnership in the area of the judiciary, fundamental rights, and public administration. After the recent constitutional reforms in Turkey, the basis for establishment of an ombudsman institution was also provided. As regards the institutions in charge of monitoring and promoting human rights, in February 2010, the draft law on the establishment of the Turkish Independent Human Rights Institution was submitted to Parliament. Turkey also shows progress in starting the twenty-four-hour Arabic language TV broadcasts in addition to the Kurdish-language TV channel (TRT 6), in advancing the role of civil society organizations, and in the situation of the Roma. However, in highly critical areas, there is still need for further progress. For instance, the Turkish government s opening of a wideranging public debate (called the Democratic Opening ) on cultural, [3.85] [3.86] [3.87] [3.88]

79 The Credibility of EU Human Rights Conditionality political, and economic matters of the Kurdish population has been only partly followed and has fallen short of expectations (EC 2010b, 35). The government s initiative aimed at improving dialogue with the Alevis community has not addressed specific problems and produced concrete results. The use of any language other than Turkish in political life is still illegal under the law on elections and political parties. The anti-terror legislation still needs to be amended to avoid broad interpretation and to prevent a disproportionately great number of detainees linked to alleged terrorist acts. No progress has been made to deal with the problem of village guards. An overall national strategy has not been developed to address the issue of internally displaced persons (IDP) (due to terrorism and the fight against terrorism). [3.89] This shows that even if there is a single-party government with more power to exercise, in order to deal with these issues, Turkey requires a serious incentive a more certain membership perspective. So, the EU s offer of a more certain membership perspective could be an important driving factor of EU HRC in the context of EU-Turkey relations. [3.90] CONCLUSION [3.91] Based on its findings, this chapter argues that, in Turkey s case, the certainty of the promise of future membership (second element) affects the credibility of the EU more than the determinacy, clarity, and consistency of the conditions (first element). Indeed, the first element of credibility has not been questioned nor even discussed in the country, while the second element has been considerably effective in triggering the country to make reforms in the field of human rights, even in critical areas for the country. In conclusion, it can be argued that the EU s offer of a more certain membership perspective to Turkey, giving up its ambivalence, can be an important driving factor of EU HRC in the context of EU- Turkey relations. [3.92] NOTES 1. Research assistant, Middle East Technical University and Selçuk University, e- mail: szerrin@metu.edu.tr. [3n1] 2. The ECJ initially was reluctant to examine complaints regarding the protection of human rights, as it fell within the field of national law (e.g., Stork case, Sgarlata case). Through the approval of direct effect (Van Gend en Loos case) and the supremacy of European law (Costa case), the Court began to contribute to the development of human rights protection (see also, e.g., Stauder case, Internationale Handelsgesellschaft case, Nold case, Rutili and Hauer cases). For the details, see Zerrin [3n2] 3. For the Greece case and Spain cases, see Verney 2006; Piedrafita [3n3] 4. To find detailed information on what the terms human rights and fundamental freedoms mean in Article 6(1), see Nowak 1999.

80 Zerrin Savaşan 5. For information on the approach of the Community to minority rights, see also Williams It is also possible to mention additional conditions like absorption capacity of the EU set out in the Copenhagen European Council 1993; the adjustment of administrative structure introduced by the Madrid European Council 1995, requiring substantial administrative reforms in the candidates; and good neighbourly relations stated in Agenda The debate on the possibility of the Community s accession to the ECHR emerges through Commission Memorandum, 1979, and EP Resolution, Then it follows through EP Resolution, 1994, and ECJ ruling, Opinion 2/ It requires a recommendation from the Commission for a negotiation mandate, a unanimous Council decision to open accession negotiations with the Council of Europe, unanimous agreement by the Council to the outcome of these negotiations, the consent of the European Parliament to the Accession Agreement, and ratification of the Accession Agreement in all twenty-seven EU member states and in the remaining twenty countries that are signatories to the Convention. 9. The debate was made on creating a separate list of human rights through EP Resolution 1979 and EP Declaration Academicians have argued about whether the organs of the Community needs to be constrained by a set of human rights. While some claimed that it needs a bill of rights, others claimed the opposite. For example, Weiler states that the Union did not need more rights on lists, or more lists of rights. See Weiler On the other hand, Haapea stresses that the Charter becoming legally binding is a crucial step toward a fundamental change in the European system of fundamental rights protection. See Haapea This Article forbids written and oral propaganda aimed at disrupting the indivisible integrity of the State of the Turkish Republic, country and nation ; it also forbids meetings, demonstrations and marches with this aim. The revised version of Article 8 introduced the concept of intent (or aim to disrupt territorial integrity and political unity) in written or oral propaganda, reduced the duration of imprisonment, and created the possibility of converting prison terms into fines. 11. The CU Decision is not an association agreement, but only a decision of the Association Council, defined as a decision. For details about the legal status of the CU Decision, see Başlar Indeed, in the case of France, there was a constitutional provision introduced in 2005 under former president Jacques Chirac. This provision stipulated a compulsory referendum on the accession of any country with a population of more than 5 percent of the overall EU population. However, as this provision would also make it more difficult for other countries to join and worsen the relations of France with Turkey, the French Senate blocked it on 23 June Yet, on 17 July 2008, the French Senate General Assembly approved the proposal for this constitutional amendment, also allowing the president to seek a parliamentary vote if three of five of the Senate s and the lower chamber National Assembly s majority consent. Hürriyet Daily News, [3n4] [3n5] [3n6] [3n7] [3n8] [3n9] [3n10] [3n11] REFERENCES [ AU: References in bold are not referred to in the text omit?] Accession Pa rtnership Documents 2001, 2003, 2006, 2008, index.php?p=42260&l=2 ( ). Agenda 2000, Communication : For a Stronger and Wider Union, Volume I, DOC/97/ 6, Strasbourg, 15 July, ( ). Barnes, Ian, and Claire Randerson EU Enlargement and the Effectiveness of Conditionality: Keeping to the Deal? Managerial Law 48(4): [3.93] [3.94]

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82 Zerrin Savaşan Council of Europe. 2010b. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), documents/tur/ inf-eng.pdf ( ). Czuczai, J The Place of Human Rights in European Law (EU Charter, European Convention for the Protection of Human Rights). Matra Multi-Country Project, Ankara: T. M. C. Asser Institute and Ministry of Justice of Turkey. de Witte, Bruno, and Gabriel N. Toggenburg Human Rights and Membership of the EU. Steve Peers and Angela Ward (eds.), The EU Charter of Fundamental Rights, Portland, OR: Hart. Document on European Identity Bulletin of the European Communities 12, December, European Commission. 2010a. Public Opinion in the European Union. Standard Eurobarometer 73, August, eb73_fact_tr_en.pdf ( ). European Commission. 2010b. Turkey 2010 Progress Report, files/ab_iliskileri/tur_en_realitons/progress/turkey_progress_report_2010.pdf ( ). European Council Copenhagen European Council, Declaration on Democracy, Bulletin of the European Communities 4. European Council Copenhagen European Council, Presidency Conclusions, Relations with the Countries of Central and Eastern Europe, June, ( ). European Council Madrid European Council, Presidency Conclusions, December, en/ec/00400-c.en5.htm ( ). European Council Luxembourg European Council Presidency Conclusions, December, ec/032a0008.htm ( ). European Council Helsinki European Council, Presidency Conclusions, December, ( ). European Council Leaken European Council, Presidency Conclusions, December, ( ). European Court of Justice Stauder (Case 29/69, ECR 419). European Court of Justice Internationale Handelsgesellschaft (Case 11/70, ECR 1125). European Court of Justice Nold (Case 4/73, ECR 491). European Court of Justice Rutili (Case 36/75, ECR 1219, ECR 3727). European Court of Justice Hauer (Case 44/79). European Court of Justice Opinion 2/94 (ECR I-1759). European Parliament (EP) European Parliament Resolution. Official Journal of the European Communities, C 127. European Parliament (EP) European Parliament Declaration. Official Journal of the European Communities, C120/51. European Parliament (EP) European Parliament Resolution. Official Journal of the European Communities, C 44, , p European Parliament, the Council, and the Commission on Human Rights Joint Declaration. Journal of the European Communities, C103/1. EU-Turkey News Network Relations between Turkey and the EU, ( ). Fierro, Elena The EU s Approach to Human Rights Conditionality in Practice. The Hague: Martinus Nijhoff. Grabbe, Heather How Does Europeanization Affect CEE Governance? Conditionality, Diffusion, and Diversity. Journal of European Public Policy 8(6):

83 The Credibility of EU Human Rights Conditionality Haapea, Arto Between Minimum and Maximum Standards: Current State and Future Challenges of the Protection of Fundamental Rights in the European Union, ( ). Hürriyet Daily News November, asp?gid=237&sz=8955 ( ). Kahraman, Sevilay The European Neighbourhood Policy: The European Union s New Engagement towards Wider Europe. Perceptions 10 (Winter): Kardas, Şaban Human Rights and Democracy Promotion: The Case of Turkey- EU Relations. Alternatives: Turkish Journal of International Relations 1(3): , ( ). Levitz, David Europe's Far-Right Vows to Push Referendum on Turkey's EU Accession, ( ). March, James G., and Johan P. Olsen The Institutional Dynamics of International Political Orders. International Organization 52(4): National Programmes for the Adoption of the EU Acquis. 2008, 2003, ( ). Negotiating Framework Luxembourg, 3 October, ( ). Nowak, Manfred Human Rights Conditionality in Relation to Entry to, and Full Participation in the EU. Phillip Alston (ed.), The EU and Human Rights, New York: Oxford University Press. Piedrafita, S In Spite of the Costs? Moral Constraints on Spain s Enlargement Policy. H. Sjursen (ed.), Questioning EU Enlargement: Europe in Search of Identity, New York: Routledge. Pinelli, C Conditionality and Enlargement in Light of EU Constitutional Developments. European Law Journal 10(3): Rehn, Olli Brussels Must Offer the Balkans a Credible Future. Financial Times, 2 April, Savaşan, Zerrin The EU Constitutional Treaty and Human Rights. Master s thesis, Middle East Technical University. Schimmelfennig, Frank European Regional Organizations, Political Conditionality, and Democratic Transformation in Eastern Europe. East European Politics and Societies 21(1): Schimmelfennig, Frank EU Political Accession Conditionality after the 2004 Enlargement: Consistency and Effectiveness. Journal of European Public Policy 15(6): Schimmelfennig, Frank, Stefan Engert, and Helko Knobel Costs, Commitment and Compliance: The Impact of EU Democratic Conditionality on Latvia, Slovakia and Turkey. Journal of Common Market Studies 41(3): Schimmelfennig, Frank, and Guido Schwellnus Political Conditionality and Convergence: The EU s Impact on Democracy, Human Rights, and Minority Protection in Central and Eastern Europe. Paper prepared for the CEEISA Conference, Tartu, Estonia, id=164447/schimmelfennig_schwellnus.pdf ( ). Schimmelfennig, Frank, and Ulrich Sedelmeier Governance by Conditionality: EU Rule Transfer to the Candidate Countries of Central and Eastern Europe. Journal of European Public Policy 11(4): Sözen, Ahmet Turkey s Democratization in Light of Its EU Candidate Status: EU Enlargement at a Crossroads. Kirstyn Inglis and Andrea Ott (eds.), The Constitution for Europe and an Enlarging Union: Unity in Diversity? Groningen: European Law Publishing, Steunenberg, Bernard, and Antoaneta Dimitrova Compliance in the EU Enlargement Process: The Limits of Conditionality. European Integration online Papers 11(5): 1 18, ( ).

84 Zerrin Savaşan Tocci, Nathalie Unpacking European Discourses: Conditionality, Impact and Prejudice in Turkey-EU Relations. Nathalie Tocci (ed.), Conditionality, Impact and Prejudice in Turkey-EU Relations, 7 32, ( ). Torreblanca, J. I The Enlargement Acquis and External Strategy: A Prelude to Deliberative Foreign Policy. CPA estudios Working Papers 4(03): 1 26, ( ). United Nations (UN) Treaty Collection, ( ). Vachudova, Milada Anna Europe Undivided: Democracy, Leverage, and Integration after Communism. Oxford: Oxford University Press. Verney, S Justifying the Second Enlargement: Promoting Interests, Consolidating Democracy or Returning to the Roots? H. Sjursen (ed.), Questioning EU Enlargement: Europe in Search of Identity. New York: Routledge. Weiler, J. H. H Does the European Union Truly Need a Charter of Rights? European Law Journal 6(2): Williams, A The Invention of Human Rights in the Community. In EU Human Rights Policies: A Study in Irony, New York: Oxford University Press.

85 II Economic Relations: Win-Win Process

86

87 FOUR Turkey s Accession to the European Union Temporary and Permanent Derogations from the EU s Economic Acquis? 1 Ronald H. van Ooik 2 and James H. Mathis 3 [4.0] The accession of Turkey to the European Union is (still) a top priority for the country. In the 2008 National Program of Turkey for the adoption of the EU acquis, for example, the vital importance of accession was formulated in the following terms: [4.1] Accession to the European Union is the principal project that will carry Turkey to its goal of prosperity. Turkey s aim of integration with the European Union is a social reform project that will affect both the present and future of every citizen. It is a great reform movement that will bring universal standards and practices to all areas of daily life, from production to consumption, from health to education, from agriculture to industry, from energy to environment, from justice to security. [4.2] Accession to the European Union is a national target, supported by our people. This aim, which is also an integral part of Turkey s strategic vision, fully corresponds to the founding philosophy of the Republic and Atatürk s ideal for the nation s integration with contemporary civilization. 4 [4.3] This chapter surveys recent European Commission monitoring reports on Turkey s ability to assume the obligations of EU membership in the economic sphere, and then draws a comparison to the two most recent (2007) accessions of Romania and Bulgaria. For this purpose recent

88 Ronald H. van Ooik and James H. Mathis ( ) Turkey Progress Reports (PRs) 5 are used for those chapters that are identified as slow or low in alignment with the EU legal acquis by the Enlargement Strategy Communications (ES) from the Commission (EC 2008a). These aspects are summarized and compared to the same subject areas as they were taken up in the transitional arrangements annexed to the Accession Treaties for Romania and Bulgaria. 6 In some instances additional context is drawn from the final monitoring reports for these countries from This gives an indication as to [4.4] the progress achieved near the time of accession and the final recommendations made for entering the accession treaties. To draw a balance with Turkey s own characterization of the process, we also include references to the most recent (2008) National Programme for the adoption of the EU acquis, as approved by the Turkish government. 7 This approach gives us an idea of how far Turkey has to go in these [4.5] core market areas in order to resolve a similar accession treaty with the EU that would have comparable transitional arrangements as those of the most recent accession countries. It also provides some insight into whether any derogation from the legal requirements or any transitional arrangements following the accession may be possible for Turkey at the time accession is finally recommended. The study we make is limited to the economic sphere, where these chapters constitute the fundamental market rules of the EU and correspond to areas that overlap with the existing Turkey-EU Customs Union. We would expect some of these subjects to have achieved higher levels of legal integration as a result of the longer-term market rules operating in the Customs Union. We also consider the selection of the two most recent accession countries as the comparative for this study. Because the EU legal acquis is not [4.6] static, the most recent accessions made to the EU provide us with the best indicators of the current legal markers that must be met by the current accession candidates. For us, attempting to set a comparative to the ten accessions completed in 2004 would require a more intransigent analysis of what aspects of EU law have also changed since that year. One caveat to this type of methodology can be noted, in that the former state-controlled economies of Bulgaria and Romania are not economically similar to the market conditions present today in Turkey. Neither are the comparative candidates of similar size in their economies and foreign markets. This suggests that while it is instructive to compare the derogations and transitions on particular market subjects as between Turkey and these acceded countries, it is also possible to consider that there may be derogations in subject areas that are unique to the previous accessions and potentially unique for Turkey. One example of this might be the greater attention paid to privatization issues in the Bulgaria and Romania accessions, as compared to what might be seen for Turkey in this same category. We will note the points of apples and oranges we can identify as the discussion goes forward.

89 Turkey s Accession to the European Union [4.7] THE ENLARGEMENT STRATEGY REPORTS (GENERALLY) AS TO ECONOMIC AND MARKET ACTIVITIES [4.8] The overall tone of the Enlargement Strategy Communications is positive as to Turkey s economic situation from the more macro perspective: [4.9] Turkey is now a functioning market economy in terms of the Copenhagen economic criteria. It should be able to cope with competitive pressure and market forces within the Union in the medium term, provided that it continues to implement a comprehensive reform programme to address structural weaknesses. 8 [4.10] More specifically, as to the thirty-three chapters of the acquis, Turkey s ability to assume the responsibilities of EU membership, the Enlargement Strategy also notes a number of areas where alignment is advanced : [4.11] Turkey improved its ability to take on the obligations of membership. Progress was made in most areas. Alignment is advanced in certain areas, such as free movement of goods, anti-trust policy and State aid, energy, economic and monetary policy, enterprise and industrial policy, consumer protection, statistics, Trans-European Networks, and science and research. (EC 2010) [4.12] The most recent enlargement strategy report, however notes the following alignment areas in particular for additional attention: environment, public procurement, freedom to provide services, social policy and employment, and taxation. In addition, enforcement needs to be strengthened in areas such as intellectual property rights and anti money laundering. Moreover, a number of important obligations taken on by Turkey as part of its Customs Union with the EU have been noted as remaining unfulfilled, particularly in the area of the general system of preferences (EC 2010; Neuwahl 1999). [4.13] As indicated above, we will survey the most problematic of these chapters presented for the economic sphere, from the Progress Reports, and draw the comparison to the transitional measures contained in the protocols from the most recent accession countries, Romania and Bulgaria. As also mentioned, the purpose of the exercise is to see what Turkey can learn during the current negotiation phase from past experiences, notably regarding the possibility to obtain temporary and/or permanent derogations from the Union s acquis. [4.14] THE ECONOMIC CHAPTERS IN THE RECENT PROGRESS REPORTS [4.15] Freedom of Movement for Workers (Chapter 2) [4.16] With regard to access to the labor market, the 2008 and 2009 PRs pointed out that Turkish legislation on work permits for foreigners that

90 Ronald H. van Ooik and James H. Mathis eased procedures and exempted certain professionals from obtaining work permits, including people working on national and international projects, was vetoed by former president Sezer and therefore had been pending before Parliament since However, in 2010 Turkey succeeded in amending the law on work permits for foreigners, introducing the possibility of preliminary permits for up to one year for foreigners providing professional services. Also, foreign experts employed in projects under financial cooperation programs between Turkey and the EU are no longer required to obtain a work permit during their assignment. However, in the Commission s view, a more comprehensive reform of the law on work permits for foreigners is still necessary. Efforts to strengthen the capacity of the Turkish Employment Agency (IŞKUR) continued. These concerned, in particular, IT infrastructure and training to allow job-matching services in an electronic environment. Further efforts are needed to prepare Turkey for participation in the European Employment Services (EURES) network. For the coordination of social security systems, efforts to build the administrative capacity of the Turkish Social Security Institution continued. Appointment of medium- and high-level managers at the central and provincial level also contributed to consolidation of this institution. Efforts to build one-stop-shop social security centers in districts are continuing. There have been no developments as regards preparations for the introduction of the European Health Insurance Card. The Commission, in all its Progress Reports, concludes that, overall, limited or hardly any progress has been made in this area. Alignment is at an early stage. The administrative capacity needs to be strengthened further. As noted above, the PRs pay some attention to the rights of EU workers in Turkey (work permit, residence permit), but they are silent on the rights of Turkish workers in the EU member states. This seems logical since the reports focus on the alignment of Turkish legislation to the EU acquis and not the other way around but this one-sided approach makes it impossible to find indications as to the desirability of transitional measures regarding the freedom of movement of workers (in both directions). Nevertheless, on all previous occasions, transitional arrangements on this sensitive freedom have been laid down in the accession treaties. In the treaties with the eight Central and Eastern European countries that acceded on 1 May 2004, as well as in the accession treaties with Bulgaria and Romania, a transitional period of seven years is provided. This period can be subdivided into an initial period of two years, a subsequent [4.17] [4.18] [4.19] [4.20] period of three years, and a final period of another two years. 9 [4.21] Until the end of the first two-year period following the date of accession, the existing member states will apply national measures (or those resulting from bilateral agreements) regulating access to their labor markets by Eastern European nationals. Before the end of this initial period,

91 Turkey s Accession to the European Union the Council shall review the functioning of the transitional provisions on the basis of a report from the Commission. Subsequently, the present member states may continue to apply their restrictive measures until the end of the (2+3 = ) five-year period following the date of accession; they only have to notify the Commission whether they will continue applying national measures or whether they will grant access to their labor market. After those five years, a member state may continue to refuse access to its labor market for another two years, but only in case of serious disturbances of its labour market or threat thereof and after notifying the Commission. Hence, even for entering the final stage of the seven-year transitional period, member states do not need approval from Brussels but can decide for themselves whether or not a serious (threat of) disturbance exists. [4.22] Assessment [4.23] Given these previous experiences, it is almost certain that transitional measures regarding the free movement of workers will also be laid down in the Accession Treaty EU-Turkey. Hence, after accession EU workers will not be free to work in Turkey and more importantly Turkish workers will not have immediate free access to the labor markets of the old EU member states. Given the size of the Turkish workforce, the duration of the transitional period may well be longer than seven years. A period of ten years seems realistic, and fifteen years seems possible. As in the case with the Central and Eastern European countries, this period will probably be divided into three subperiods, and the present member states will not be required to seek the approval of the Commission for any extension within the overall period of the extension allowed. [4.24] It must, however, be questioned whether a permanent derogation from the right of free movement for Turkish workers (and their families) is acceptable from the legal point of view. In this regard it should be noted that free movement of workers, as being part of the broader free movement of persons, is one of the fundamental freedoms of the internal market. 10 This has been stressed by the European Court of Justice (ECJ) on many occasions. 11 Therefore, from the legal perspective, such a permanent derogation negatively affecting workers from just one of the by then probably some thirty member states does not seem acceptable. There is no previous example of a permanent derogation being adopted. Moreover, it should be added that the ECJ would probably not have jurisdiction to rule on the compatibility of a permanent derogation for Turkish workers with the internal market provisions. This is because any permanent derogation would be laid down in the accession treaty, which would then have the status of primary Union law. 12 [4.25] Finally, it must be noted that free movement of Turkish workers is not entirely dependent on the EU-Turkey negotiations on accession: at

92 Ronald H. van Ooik and James H. Mathis present, under the current Ankara Association Regime and more specifically under Decision No. 1/80 of the EU-Turkey Association Council, Turkish workers (and their families) enjoy important rights of equal treatment and residence once admitted by one of the member states. Hundreds of questions from national courts of the EU member states on the interpretation of Decision No. 1/80 (and some on Decision No. 3/80, concerning social security rights of Turkish workers) have reached the ECJ (Rogers 2006, 158; Tezcan/Idriz 2009). In its 2008 National Programme, Turkey proposes to not wait until full membership but to codify this important case law of the ECJ beforehand: Decisions Nos. 1/80 and 3/80 of the Turkey-EU Council laying down the procedures related to the entry of Turkish workers and their families to the EU employment market and their wages and working conditions, need to be updated by taking into consideration the interpretations of the European Court of Justice. There is a need for new Association Council Decisions that will permit our citizens working legally and residing in member states to exercise the right to free movement without having to wait for Turkey s full membership. 13 Right of Establishment and Freedom to Provide Services (Chapter 3) For the freedom of establishment, the Commission contends that gender, nationality, residency, language, and other requirements, such as the one-office rule for pharmacists, continue to be incompatible with the acquis. As regards freedom to provide cross-border services, registration, license, or authorization requirements also continue to be incompatible with the acquis in this specific area (i.e., notably, the Services Directive). 14 Firms already established in a member state are still subject to specific registration and authorization requirements in Turkey. The same applies to service providers, who have to fulfill particular requirements in Turkey in order to obtain the necessary work and residence permits. Sometimes even new restrictions were introduced; this happened for example in 2010 with the adoption of a regulation that made the use of service stations for tachographs in use in vehicles for road transport conditional on the provider producing a Turkish identity card. Work to identify obstacles to exercising the right of establishment and freedom to provide services on a structural basis has not yet started. With regard to the Turkish postal service, all PRs report no progress. A broad legal monopoly remains in place, with no clear indications of further gradual market opening. As for administrative capacity, an independent regulatory authority still has to be established. On the other hand, in the older PRs the Commission reported some progress in the area of mutual recognition of professional qualifications. A regulation on harmonization of the minimum training requirements [4.26] [4.27] [4.28] [4.29] [4.30] [4.31]

93 Turkey s Accession to the European Union for regulated professions (medicine, nursing, midwifery, dentistry, veterinary medicine, pharmacy, and architecture) was adopted and published with the aim of aligning with Directive 2005/ The Turkish Vocational Qualifications Authority has taken further steps toward becoming operational, including recruitment of staff and adoption of several regulations on staff and working methods. [4.32] The Commission s approach to the recognition of foreign service providers as an element of the acquis is evident where it is noted that the principle of reciprocal recognition is still applied by Turkey to a number of regulated professions, whereas automatic recognition is the general rule applied by member states under the acquis. 16 One may wonder whether the Commission is not asking too much from Turkey on this point: essentially the country is being requested, prior to its accession, to automatically recognize EU qualifications regardless of whether the existing EU member states recognize Turkish qualifications for the same professions. 17 Thus, for example, a Dutch dental diploma would have to be recognized by Turkey even while a Turkish dental diploma may not be recognized by the Netherlands until the time of accession. While the National Programme of Turkey for the Adoption of the EU Acquis (ABGS 2008) does not address this question, there is a similar argument that can be made, as noted above for Turkish workers, for an interim codification to apply the Union acquis for Turkey when it has met its side of the bargain. This is to suggest that the economic gains possible for both the EU and Turkey can be realized by a mutual recognition exercise far sooner than the final accession date. The potential for opening serviceprovider markets in the EU for Turkish providers would also motivate the process of completing this acquis in the Turkish legal order. 18 [4.33] The Commission s overall conclusions are not that positive, and together they form a descending line: in 2008 and 2009 limited progress could be reported on the right of establishment and freedom to provide services; in 2010 very limited progress was reported, and in the 2011 report the Commission concluded that no progress had been made. Alignment in these areas is still at an early stage. Alignment with EU law on the mutual recognition of professional qualifications is assessed somewhat more positively, but the same descending line can be seen: from progressing slowly but at a steady pace in the 2008 PR to very limited progress in the 2011 PR. [4.34] In the case of Bulgaria, the Commission concluded (in 2006) that significant progress had been made on the right of establishment and the freedom to provide nonfinancial services. Bulgaria was generally meeting the commitments and requirements arising from the accession negotiations, and Bulgaria was expected to be in a position to implement the acquis from the time of accession if the current pace of progress was maintained. Progress had been made in the area of financial services, notably on banking and insurance, but increased efforts were still needed

94 Ronald H. van Ooik and James H. Mathis in specific fields of banking such as capital requirements for investment firms, 19 investment services and the securities market, and protection of personal data. In addition, increased efforts were required on motor vehicle insurance and on the information society. Some progress had been made in Bulgaria on mutual recognition of professional qualifications. Preparations were continuing, but there were concerns that Bulgaria would not be in a position to fully implement the acquis from the time of accession if the current pace of progress was not raised. Swift action was therefore recommended by the Commission in As for Romania, just prior to its accession good progress had been made with identifying barriers to the right of establishment and the freedom to provide services and removing incompatibilities with the (then) EC Treaty. Romania had a legal framework in place that allowed the provision of services in a temporary manner by EU nationals without the need to obtain further licenses. On the other hand, problems remained in the banking sector (capital requirements for credit institutions and investment firms) and the insurance sector (compensation of victims of road accidents by Romanian compensation bodies). Assessment As in the case of workers, no indications can be found in the PRs as to the desirability of transitional measures regarding the freedom of establishment and the freedom to provide services. Nevertheless, in the previous accession treaties with the Eastern European countries, no such transitional (restrictive) measures can be found regarding the freedom of establishment of natural and legal persons from the new member states into the territory of the old member states. This led to an increase of migration of self-employed persons from Central and Eastern Europe into the existing member states, given the fact that the free movement of workers was not (entirely) liberalized. Nationals from Poland, Hungary, and others, set up their own businesses or started to work not under the direction of a boss, in order to obtain residence permits and to be exempted from national requirements regarding work permits. Numerous cases were referred to the ECJ, which had to rule, inter alia, on the distinction between the concept of worker and that of self-employed person. 20 Given these previous arrangements, there is a possibility that the EU- Turkey accession agreement will also not contain transitional rules for the freedom of establishment as far as the physical migration of self-employed persons is concerned. It would then be of the utmost importance for Turkish nationals to conduct as much economic activity as possible in a self-employed capacity and not as workers. On the other hand, it must be noted that in more recent international agreements than the Europe [4.35] [4.36] [4.37] [4.38]

95 Turkey s Accession to the European Union agreements, the right to freedom of establishment for natural persons was restricted as well. 21 [4.39] In this respect it should be noted that already under the current Ankara Association regime, Turkish self-employed persons, just like Turkish workers, enjoy important rights, in particular the stand-still rights given to them by Article 41(1) of the Additional Protocol: The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services. [4.40] In several judgments, including the famous Tum and Dari judgment, 22 the ECJ ruled that this provision is drafted in clear and unconditional terms so that it can be invoked directly by Turkish self-employed persons before the courts of the EU member states. Moreover, the clause covers the first admission of Turkish nationals, so that they have a (Union law based) right to enter and to stay in the EU member states, at least if such a right existed on the date of entry into force of the Additional Protocol for that particular member state. For the original members, such as Germany and the Netherlands, that date was 1 January It is no surprise that in several member states, extensive research is conducted on the rules on immigration of self-employed Turkish nationals that were in force on this date. [4.41] In the subsequent 2009 Soysal case, the Court ruled that Article 41(1) also precludes the introduction of a requirement that Turkish nationals must have a visa to enter the territory of a member state in order to provide services there on behalf of an undertaking established in Turkey, if such a visa was not required on the date of entry into force of the Additional Protocol. 23 [4.42] Despite this far-reaching case law of the ECJ, a true freedom of establishment in the EU-Turkey accession treaty would make a difference: access to self-employed economic activities would no longer be dependent on the national immigration rules that were in force on 1 January 1973 (or on the date of accession for member states that acceded to the EU after this date). [4.43] Public Procurement (Chapter 5) [4.44] This subject is indicated in all recent PRs as a limited progress area. The designation of the Ministry of Finance as overall responsible for coordination is noted as positive, but this needs to be supported by a comprehensive program to align with the EU acquis for procurement, particularly on utilities, concessions, and public-private partnerships. [4.45] All EU member states are also signatories to the WTO Government Procurement Agreement (GPA). The core obligation of the GPA is to provide national treatment for foreign bidders in domestic government procurement. Romania and Bulgaria acceded to that agreement in 2007,

96 Ronald H. van Ooik and James H. Mathis commensurate with their accession to the EU. Turkey is listed as an observer to the GPA but is not designated as a country negotiating accession to it. Many developed and large developing countries are also in this same observer status Australia, Chile, and China, for example. 24 As for transitional arrangements made on behalf of Bulgaria and Romania, there are no such exceptions, derogations, or transitions set out [4.46] for these countries for procurement activities. For the Bulgarian example, the 2006 Commission report indicated that the procurement area was in substantial compliance with the passage of a remedies mechanism in accord with EU law and the removal of inconsistent national acts with the overriding legislation. Staff capacity to handle remedies was being expanded, and the assessment indicated that existing progress would be on track for a 2007 accession. Assessment This is not an area that has any potential for modifying EU legislative arrangements by derogation. Since existing members grant national treatment access to their procurement markets (and in accord with the WTO GPA), there cannot be access to these EU member markets for tenders without a full measure of reciprocity on Turkey s part. Procurement is a large part of national GDP, and it is also an area where extensive industrial policy and protectionism is practiced even in advanced, developed economies. At the same time, an open procurement market based on national treatment and transparency offers very large efficiency gains for governments and their budgets. This is overall confirmed by the Turkish government in its 2008 National Programme for the adoption of the EU acquis, which notes the importance of finalizing the new Draft Law on Procurement. This will ensure transparency and impartiality in conformance with international norms, maximize competition and public control in the field of public procurement, and effect harmonization with the EU acquis in the shortest possible time. There is also the need to establish an independent legal or administrative institution to consider applications and to settle disputes in public procurement. No mention is made here of possible derogations (Alyanak 2007). Competition Policy, Including State Aids (Chapter 8) Turkey has long had a functioning and active competition authority that is substantially aligned with EU competition law. The Turkish law handles anti-competitive practices and mergers effectively. The most recent (2011) Commission s overall conclusion is that in the field of antitrust and merger control, Turkey s alignment record is good. The Compe- [4.47] [4.48] [4.49] [4.50] [4.51]

97 Turkey s Accession to the European Union tition Authority enforces antitrust rules effectively, with a satisfactory level of independence. [4.52] Not included in the national competition law, however, was a state aid regime and regimes for handling public undertakings and for firms granted special and exclusive rights. As the 2008 PR pointed out: [4.53] Turkey has not adopted the state aid legislation nor set up an operationally independent state aid monitoring authority. Furthermore, Turkey has not prepared the state aid inventory and has not reported on state schemes, as required by the transparency commitments. There are no rules ensuring transparency of financial relations between public authorities and public undertakings. 25 [4.54] Since 2010 the PRs have been much more positive on Turkey s state aid regime. A separate state aid law was adopted, and an informal inventory of aid schemes has been established. As noted above, the Board of the State Aid Monitoring Authority has been appointed and competent staff has been transferred from the Treasury. Training curricula are being implemented. The Authority is now fully set up and has started drafting the relevant implementing legislation. Thus, substantial progress has now been made in the area of state aid, in particular because the State Aid Monitoring Authority was set up. However, further efforts are still required in the area of alignment of existing state aid schemes. [4.55] For the 2007 accession countries, the Bulgaria 2006 PR indicated that the national law was substantially harmonized and that the criteria for accession had been met. Therefore the chapter was not reviewed. The transitional provisions for Bulgaria did not list any outstanding state aids allowed to be subject to derogations, or other special aid arrangements for regions or sectors. [4.56] The 2006 report for Romania was more mixed, indicating progress made on state aids but not completed in alignment with EC (now EU) standards. From the September 2006 MR report: [4.57] Romania advanced in establishing state aid discipline to an extent that public authorities and industry are now aware of their respective rights and obligations, even if the behaviour of state aid grantors (particularly the Ministry of Public Finance) needs to be improved. State aids in the form of tax exemptions to the National Lottery constitute a case in point. Efforts need to continue to conclude the assessment of aid measures in favour of major companies in need of restructuring. (EC 2006) [4.58] The transition annex for Romania also carried some of these issues forward. Aid was permitted in the two forms of corporate tax exemptions for undertakings in twenty-eight listed Deprived Areas and for certain royalty exemptions in free-trade zones. These were permitted in the form of regional aid subject to a number of percentage caps, eligible costs definitions, computation periods, and reporting conditions. 26 Romania was required to establish that the conditions were operating within two

98 Ronald H. van Ooik and James H. Mathis months after accession and was required to report on them every six months. The transition annex did not indicate that these aids were required to be discontinued on any set date, but there were major disclosure points set for the schemes three to four years after accession. Steel restructuring was also a subject in the Romania annex. From the September 2006 MR the Commission described the status of this sector as follows: As regards state aid to the steel industry, the Romanian authorities cooperated closely with the Commission on the implementation of the National steel restructuring programme. Romania continued to observe its commitments not to authorise any aid to steel plants in the National restructuring programme. However, strengthened efforts are needed to ensure steel companies return to long-term viability at the end of the restructuring period. Restructuring aid granted to steel companies outside the National Restructuring Programme has been recovered. The final transition annex allowed for restructuring aid in designated sums with accompanying production cuts to designated companies through This reflected the completion of the restructuring program as agreed with the Commission by Monitoring extended through 2009 for the restructuring program. Assessment State aid control is an advanced Community/Union acquis area, but with the reporting caps as set in the EU regulations, there is some flexibility for member states in the overall regime. The control and reporting mechanisms and the transparency aspects all have to be established in every member state in order to avoid market distortions. For the accession candidates, by the time transition annexes were resolved these members all had their institutional state aid regimes in place and either had no inconsistent aid schemes upon which to negotiate transitions (Bulgaria) or had converted their aid into a form of regional aid that could be disclosed and controlled according to the negotiated conditions (Romania). Aid to the steel sector was permitted for two years beyond the accession date as part of a four-year restructuring program to allow the industry to rationalize its production cuts. The clear indication presented here is that Turkey absolutely needed to commence its state aid process, which it has done since Because of this recent development and also because of the dislocation effects on firms and employment, it no longer seems that an adjustment period for state aids will become a major issue in the further accession negotiations. It seems that Turkey itself was convinced of the need to substantially reform its state aid regime in time: in the 2008 National Programme, it indicated that the fragmented picture of state aid aims needed to be elim- [4.59] [4.60] [4.61] [4.62] [4.63] [4.64] [4.65] [4.66]

99 Turkey s Accession to the European Union inated. A system similar to the Nomenclature of Territorial Units for Statistics (NUTS), forming the basis of the regional statistical classification of the state aid system of the EU, needed to be established in Turkey. Furthermore, it was said that there also was the need to establish a monitoring and supervision authority for state aid to assess the conformity of state aid applications with the criteria set down by the EU acquis. [4.67] Food Safety, Veterinary, and Phytosanitary Controls (Chapter 12) [4.68] This is a large and complex basket of acquis that includes veterinary policies, testing and marketing of food and feed, phytosanitary controls, animal welfare, and zootechnical issues. The 2008 and 2009 reports indicate that there is a limited process of translating and implementing the EU acquis, but it also notes progress in a number of areas. In 2010 the Commission is more positive. Progress was achieved on all key elements for the accession negotiations in this chapter. The adoption of the Framework Law on veterinary services, plant health, food, and feed has contributed significantly to Turkey s alignment process in the area of food safety and veterinary and phytosanitary policy. In 2011 the Commission added that the restructuring of the Ministry of Agriculture and Rural Affairs is a positive step toward strengthening the official control system. However, further alignment is still needed in order to bring the overall control system fully into line with the EU acquis. Considerable effort is needed in the area of animal health and in bringing agri-food establishments into compliance with the EU hygiene and structural requirements. [4.69] For the 2007 accession countries, there were transition provisions for this chapter. For Bulgaria the section was entirely dedicated to the processing and distribution of milk, which could not yet comply with the Community (now Union) regulations, and mainly ensuring that this product would not enter free circulation. This derogation was permitted until the end of Romania received derogations for meat and milk processing that remains on the domestic market. This was a gradual control regime that required the submission of a plan and then compliance by the end of There was a further derogation for plant-protection products that also was granted to the end of [4.70] Assessment [4.71] This is a gradual harmonization process that has to be timed with a final Accession Treaty. A limited derogation and extension can be seen for some products that remain on the local market. However, these derogations, if following the earlier accession pattern, will be limited in time, perhaps not extending beyond two years following accession.

100 Ronald H. van Ooik and James H. Mathis Social Policy and Employment (Chapter 19) In the area of labor law, shortcomings in the transposition of a number of directives remain. These include the limited scope of application of Turkish labor law, as existing legislation does not cover all workers in the private sector and excludes workers in the public sector. 27 Child labor, including children working on the streets, remains a problem. Administrative capacity of the Ministry of Labour and Social Security is not yet sufficiently developed, although the Labour Inspection Board started harmonizing its inspection practices and has further improved its capacity (although there are still only 384 labor inspectors active in 2011). There has been progress in the area of health and safety at work, where Turkey has attained a good degree of alignment with the acquis. The labor law was revised to prohibit workers without the relevant vocational training qualifications from being employed in heavy and risky work. Still, statistics reveal that there has been a significant increase in fatal occupational accidents and diseases, in particular in SMEs but also for example in the Tuzla shipyards (Istanbul). Further efforts to implement the legislation are needed, including awareness-raising, training, and strengthening the capacity of the inspection bodies. There has been progress in the area of employment policy. In 2010, the unemployment rate amounted to 11.9 percent, down from 14 percent in 2009, and further falling to 9.4 percent in the beginning of The Turkish labor market is characterized by low labor force participation (from 47.8 percent in 2007 to 49 percent in 2010) and low employment rates, in particular for women (22.2 percent in 2007, below 30 percent in 2010), and high levels of youth unemployment (19.6 percent in 2007, 21.7 percent in 2010). The large size of the informal economy and the marked rural/urban divide in the labor market remain the main challenges. IŞKUR continued its efforts to improve its institutional capacity and the services provided to job seekers. On the subject of social inclusion, the most important piece of recent legislation is the Social Insurance and General Health Insurance Law, which entered into force in October It provides general health insurance coverage for everyone under eighteen years of age. This includes foreign nationals who have resided in Turkey for more than a year and who do not have social insurance in their home countries. The health premiums of those who cannot afford to pay are to be covered by the state. In the field of social protection, progress has been achieved. The Social Insurance and General Health Insurance Law aims to regulate the pension parameters and the general health insurance system with a view to ensuring adequate and sustainable pensions. The Social Security Institution has been strengthening its capacity to deliver decentralized, one-stop services for disadvantaged people. [4.72] [4.73] [4.74] [4.75] [4.76] [4.77]

101 Turkey s Accession to the European Union [4.78] Regarding anti-discrimination and equal opportunities, the Commission points out that female employment rates and access to education are the lowest among the EU member states and the OECD countries. Important general principles and definitions, such as the definition of direct and indirect discrimination, are lacking in national law. The acquis concerning discrimination on grounds of racial or ethnic origin, religion or belief, disability, age, and sexual orientation has not yet been transposed. 28 An effective and independent equality body still needs to be established to promote nondiscrimination and equal treatment. [4.79] Overall, in recent years Turkey has made some progress in the field of social policy and employment. However, ensuring full trade union rights still requires extra attention. The 2010 constitutional amendments regarding trade union rights have not yet resulted in further changes of the legislation aimed at granting full trade union rights 29 in line with EU standards and ILO conventions. Combating large-scale undeclared work is also still a major issue. Further efforts are needed in order to combat child labor. Gender equality in economic and social life should be improved; female employment rates should be increased, and legislation establishing an equality body has not yet been adopted. The scope of the labor law remains limited, and enforcement of health and safety at work legislation needs to be stepped up. The risk of poverty remains high, especially for the rural population and for children. In general, there is a need to increase administrative capacity for the effective implementation of the acquis. [4.80] In the case of Bulgaria, we can see similar problems in this area, even just before its accession in Legal alignment needed to be completed and enforced in the areas of labor law and public health. Bipartite social dialogue needed to be further strengthened and the correct participation of social partners in tripartite structures still had to be ensured. Social inclusion, access to quality health care services and education, de-institutionalization, child welfare, and integration of vulnerable groups into the labor market had to be significantly improved. In general, increased efforts were needed to strengthen the administrative capacity to ensure due implementation of the social policy acquis by the date of Bulgaria s accession. [4.81] Romania faced similar problems in The Commission stated that legal alignment still needed to be completed swiftly in the areas of labor law and equal treatment of women and men. Particular attention needed to be paid to completing transposition in the field of public health, such as communicable diseases, tobacco advertising, and blood and tissues. The weak bipartite dialogue still had to be promoted, representativity criteria had to be clarified, and outstanding issues of fragmentation and insufficient capacity of social partner organizations had to be solved. In the area of social inclusion, efforts needed to continue to improve the

102 Ronald H. van Ooik and James H. Mathis situation of vulnerable groups, such as the Roma, and to promote their full integration into society. Still, despite these remaining problems, Bulgaria and Romania did not obtain any derogation in the field of social policy and employment. 30 Assessment This chapter is a problematic one for Turkey, as can be seen from the above summary. Nevertheless, it should be remembered that many directives in the field of social policy are quite flexible in nature, meaning that many of them contain parts that may be implemented by the member states (so-called optional harmonization) and that member states encountering specific problems are sometimes given longer implementation periods. Apart from these limited flexibilities, it does not seem at all possible to derogate from the EU s social acquis. This finding is supported by the Bulgarian and Romanian experiences: despite more or less similar problems in the social field, in the end no derogations were accepted. Hence, it is not unlikely that (parts of) this chapter will become a major problem for Turkey. It seems the country is aware of this: in its 2008 National Programme it promised to remedy most of the shortcomings mentioned above. It stated that the Law on Trade Unions for Public Officers has to be enacted and that amendments to the Laws on Trade Unions and on Collective Labour Agreements, Strikes, and Lockouts are necessary; legal arrangements will be introduced regarding job security; measures are required within the framework of studies on the elimination of child labor; and it is considered very important to enact the Draft Law on the Work Permits of Foreigners. 31 As for the elimination of discrimination based on sex, the following matters are required to be fulfilled: to complete the legal arrangements on paid maternity leave and parental leave; to complete the legal arrangements on abolishing the term head of the family ; to introduce arrangements on equal treatment in terms of social security; to make the necessary arrangements for shifting the burden of proof in cases of sex discrimination to the employer. 32 Environmental Protection (Chapter 27) This is an extensive and problematic chapter that contains a large number of very expensive requirements. Implementation affects competitiveness in a number of sectors, and resources attributable to the environment compete against other high-priority social requirements. The PRs document the key areas. For so-called horizontal legislation, Turkey has transposed the Environmental Impact Assessment (EIA) directive to a large degree, but procedures for consulting the public and trans-boundary consultations are not fully aligned. Transposition of the Strategic Environmental Assessment (SEA) Directive is at an early stage. [4.82] [4.83] [4.84] [4.85] [4.86] [4.87] [4.88]

103 Turkey s Accession to the European Union There has been no progress on transposition of the acquis on environmental liability, public participation, and public access to environmental information. Turkey has not yet started negotiations on the memorandum of understanding on its participation in the EU civil protection financial instrument. [4.89] In the case of air quality, Turkey has made good progress in alignment with the air quality framework legislation and daughter directives. Progress has also been made on the sulfur content of liquid fuels in domestic heating systems. The administrative capacity for regional air quality has been improved by establishing a clean air center in Marmara. However, no progress has been made on legislation related to the acquis on emissions of volatile organic compounds, on the sulfur content of certain liquid fuels, or on national emission ceilings. [4.90] Good progress can also be reported on alignment with the waste management acquis (PCBs, waste oils, etc.). The revision of the waste legislation, largely in line with the provisions of the new EU Waste Framework Directive, has begun with the adoption of legislation on solid waste, wastewater tariffs, waste incineration, packaging waste, and the inspection of end-of-life vehicles. There has been little progress, however, in the area of water quality. The institutional framework for water management is not organized on a river basin basis. Transboundary consultations on water issues are at an early stage. [4.91] On the subject of nature protection, Turkey has aligned with the acquis regarding establishment and management of zoos, but the level of harmonization and implementation remains very low. The continuing loss of habitats as a result of the building of new large water and energy infrastructure in the country is a cause for concern. The list of potential Natura 2000 sites has not yet been compiled. A framework law on nature protection and legislation on birds and habitats have not yet been adopted. A national biodiversity strategy and action plan have been prepared but have not yet been adopted by the government. [4.92] The Commission s most recent overall conclusion is that some progress was made toward further alignment in the field of environmental protection. Preparations in the field of environment are at an early stage. Turkey has made good progress on waste management, whereas limited progress can be reported on horizontal legislation, air quality and industrial pollution control, and risk management. Turkey made very limited progress on water quality, chemicals, and administrative capacity. There is no progress to report on nature protection. Investments in the field of the environment need to be increased. Regarding climate change, Turkey made limited progress on awareness-raising on EU climate requirements. However, a more ambitious climate policy still needs to be established, both domestically and internationally. No further progress was made on developing administrative capacity in the field of climate change.

104 Ronald H. van Ooik and James H. Mathis For Bulgaria and Romania the areas of environment and waste management were major subjects for derogations and transitions. The two lists are long ten pages of the Official Journal for Bulgaria and thirty-one pages for Romania and they mention (derogations and transitions from) the directives on air quality, waste management, water quality, industrial pollution, and risk management. Many of the transition periods extend from three to five years following accession, and in some cases there appear to be compliance provisions extending beyond those transitions. Assessment It is clear that the Environmental Chapter poses serious problems for Turkey; estimates run up to 60 billion in case the country has to adopt the entire environmental acquis. At the same time, the Bulgarian and especially the Romanian cases show that in this area the EU is prepared to accept (many) more derogations and transitions than in most other areas, albeit on a temporary and not a permanent basis. It is therefore of great importance to Turkey, already prior to accession, (1) to start seriously analyzing the many EU directives on environmental protection, and in particular the extremely complex and technical annexes to these directives; and (2) to conduct extensive environmental research in the country (emissions, storage capacities, water quality of the Sea of Marmara, most polluting installations, etc.), so that well in advance, the country is prepared when it comes to negotiating derogations from the environmental acquis. [4.93] [4.94] [4.95] CONCLUSION For those areas that are being compared, what is evident is that when it comes to market-based acquis, there is not much available for an acceding member state in the way of substantive derogations or extensions. When derogations are noted, they are narrowly prescribed, already part of a program of alignment, and the provisions tend to be simply allowing the final alignment to occur after accession. This is what happened in the case of Bulgaria and Romania after they joined the EU on 1 January 2007: the two countries still had progress to make in the fields of judicial reform, corruption, and organized crime, and the EU decided to establish a special cooperation and verification mechanism to help them address these outstanding shortcomings. Hence, even after their accession the [4.96] [4.97] Commission continues to publish progress reports. 33 [4.98] In most cases these extensions are for two years, and in some cases four or five years; the seven years for freedom of movement of workers is exceptionally long. In all cases there is a significant obligation for transparency and monitoring through that extension phase.

105 Turkey s Accession to the European Union [4.99] This is a bit of a generalization, and there are exceptions. One is in the area of state aid, where Romania does appear to have a more open regime for certain types of regional aid granted by specific instruments. Another area of note is that of environment and waste management. Here compliance programs are also required, but the period for compliance also appears to recognize the expense involved in harmonization. [4.100] For an approach that considers the Turkish government s point of view, we included regular references to the most recent National Programme for the adoption of the EU acquis, approved by the Turkish government. The overall tone of that document shows an attempt to assume all obligations of EU membership, including the obligations in the economic sphere, and not oriented to obtaining temporary and/or permanent opt-outs. [4.101] We think the 2008 National Programme demonstrates the right approach even though we understand that Turkey s campaign for membership has been riddled with political questions regarding the EU s commitment to admit Turkey in the final analysis. 34 These doubts over Turkey s ultimate prospects, expressed within both the EU and Turkey, stand as barriers to moving the process of formulating alignment to EU law, especially considering the complexity and expense of this project for Turkey. We witnessed this serious tension, for example, in June 2009 when the chapter on taxation was opened despite the fact that shortly before both President Sarkozy and Chancellor Merkel had indicated that they would oppose Turkey s accession. On the Turkish side we encounter the idea especially among supporters of the Cumhuriyet Halk Partisi that the alignment process, and in particular Turkish alignment to the EU s political acquis, is merely being used by the ruling Adalet ve Kalkınma Partisi to reinforce its own position, leaving those critics wondering why Brussels does not see what it is doing and thereby casting more and more doubts on the desirability of full membership. 35 At the same time, we also take the view that the acquis and for a significant part will greatly benefit Turkey and its prospects for economic and social development. This is the direction that Turkey has indicated it would prefer to travel, with or without the concept of European integration in the mix of its policy priorities. [4.102] One approach to accession that has become gradually evident while reviewing a number of these chapters is to consider realistically how long it will take to match the alignment with the acquis sufficiently to form the basis for a treaty comparable with the 2007 acceded countries. This requires a more functional assessment that also considers some appreciation for the developing pace of harmonization committed by Turkey in many of the subject areas, as we have tried to document throughout this chapter. For all of these different regimes, we can then ask (but of course cannot answer): Is five or ten or fifteen years the time it will take for

106 Ronald H. van Ooik and James H. Mathis Turkey to complete the mission to adopt and implement the Union acquis? We think that the answer to that question should govern the reasonable expectations of both Turkey and the European Union in the preparation for accession. [4.103] NOTES 1. A draft version of this chapter was presented by the authors at the IKV seminar Legal Aspects of Turkey s Accession to the EU on April 17, 2009 in Istanbul. The authors thank Prof. Haluk Kabaalioglu for the invitation to appear, the seminar participants for their helpful comments and criticisms, and Jennifer Breaton for her research assistance. Any remaining errors or omissions remain the responsibility of the authors. 2. Assoc. Prof. Dr. in European Union Law, Amsterdam Center for European Law and Governance, Faculty of Law, University of Amsterdam, R.H.vanOoik@uva.nl. 3. Associate Professor in International Economic Law, Amsterdam Center for International Law, Faculty of Law, University of Amsterdam, J.H.Mathis@uva.nl. 4. Preamble to National Programmes of Turkey for the Adoption of the EU Acquis, Transitional measures are provided for by Article 20 of the Accession Protocol for Bulgaria and Romania, OJ L 157/29, ( Transitional Measures. Article 20 The measures listed in Annexes VI and VII to this Protocol shall apply in respect of Bulgaria and Romania under the conditions laid down in those Annexes. ) For Bulgaria, see OJ 2005 L 157/04; for Romania, OJ 2005, L 157/ See reference in note 3. For a Turkish-authored summation of EU-Turkey relations through this process, see also, Karagöz 2008, EC, 2008b, 4. A similar conclusion is in the most recent ES. See EC 2011, although now Turkey is requested to accelerate the implementation of its comprehensive structural reform program. 9. For the latest accessions, see the Act concerning the conditions of accession of the Republic of Bulgaria and Romania and the adjustments to the treaties on which the European Union is founded, Annexes VI and VII, OJ 2005, L 147. Hence, the transitional period for these two countries runs from 1 January 2007 until 1 January For Poland, Hungary, the Czech Republic, Slovakia, Slovenia, Estonia, Latvia, and Lithuania, it ran from 1 May 2004 until 1 May See Article 26(2) of the Treaty on the Functioning of the European Union (TFEU): The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties (emphasis added). 11. See, e.g., Case 139/85, Kempf [ECR] 1986, 1741, para. 13: The Court has consistently held that freedom of movement for workers forms one of the foundations of the Community [now Union], the provisions laying down that fundamental freedom and, more particularly, the terms worker and activity as an employed person defining the sphere of application of those freedoms must be given a broad interpretation in that regard, whereas exceptions to and derogations from the principle of freedom of movement for workers must be interpreted strictly (emphasis added). 12. Under Article 263 TFEU (Actions for Annulment) the Court only has jurisdiction to rule on the validity of secondary Union law, i.e., the binding decisions of the EU institutions (such as regulations and directives). Moreover, since accession treaties are concluded between the member states and the applicant state(s), without the EU being [4.104] [4n2] [4n3] [4n4] [4n5] [4n6] [4n7] [4n8] [4n9] [4n10]

107 Turkey s Accession to the European Union a party as well (see Article 49 of the Treaty on European Union [TEU]), it is doubtful whether the ECJ is competent to deliver an Opinion, ex Article 218(11) TFEU, on the compatibility of a (draft) accession treaty with Union law. In this procedure the ECJ is only competent to rule on the compatibility with EU law of envisaged agreements between the Union and third countries or international organisations (Article 218(11) read in conjunction with Article 218(1) TFEU). [4n11] 13. In this regard it must be noted that the Association Council can only act by unanimous vote of the two blocs whereby the European one consists of representatives of the governments of all EU member states, the Council and the Commission (Article 23 of the Ankara Agreement). [4n12] 14. Directive 2006/123/EC of 12 December 2006 on services in the internal market, OJ 2006, L 376, 36. [4n13] 15. Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications OJ 2005, L 255, [4n14] 16. See Article 1 of Directive 2005/36: This Directive establishes rules according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications shall recognise professional qualifications obtained in one or more other Member States and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession. [4n15] 17. For service sectors, derogations permitted for EU member states (Germany: construction services) were also extended to Bulgaria and Romania as equivalent restrictions. See Lazowski 2007, 424. [4n16] 18. The WTO accommodates reciprocal mutual recognition agreements for the qualifications of service providers according to GATS Article VII. [4n17] 19. Implementation of Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions (recast), OJ 2006, L 177/201. [4n18] 20. See, for example, Case C-63/99, Gloszczuk; Case C-235/99, Kondova; Case C- 257/99, Barkoci and Malik (judgments of 27 September 2001); and Case C-268/99, Jany (judgment of 20 November 2001). It must be noted that these cases deal with the former Europe Agreements, but these contained a similar distinction: no free movement for workers, but at the same time hardly any restrictions on the freedom of establishment. [4n19] 21. See, for example, Article 48(5) of the 2004 Stabilisation and Association Agreement between the former Yugoslav Republic of Macedonia and the EU (OJ L 84, ): Five years after the entry into force of this Agreement, and in the light of the relevant European Court of Justice case law, and the situation of the labour market, the Stabilisation and Association Council will examine whether to extend the above provisions [on the establishment of companies] to the establishment of nationals of both Parties to this Agreement to take up economic activities as self-employed persons. [4n20] 22. Case C-16/05, Tum and Dari, judgment of 20 September The direct effect of Article 41(1) of the Additional Protocol had already been recognized in Case C-37/98, Savas [2000] ECR I-2927 and Joined Cases C-317/01 and C-369/01, Abatay [2003] ECR I [4n21] 23. Case C-228/06, Soysal and Savatli [ECR] 2009, p. I See further, Göçmen See also the more recent case law on Article 41(1): Case C-256/11, Dereci, judgment of 15 November 2011; Case C-186/10, Oguz, judgment of 21 July 2011; Joined Cases C-300/09 and C-301/09, Toprak and Oguz, judgment of 9 December 2010; Case C-92/07, and Commission v the Netherlands [ECR] 2010, p. I-3683 (the so-called Dutch Residence Permits Charges case). On this case law in general, see Tezcan/Idriz and Slot [4n22] 24. See [4n23] PR, p. 47. The 2009 Report, on p. 49, draws the same conclusion, though it adds that progress was made as regards state aid to the steel industry in June 2009.

108 Ronald H. van Ooik and James H. Mathis 26. Annex VII, OJ L 157/ Cf., in particular, Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (OJ L 183, , pp. 1 8, as amended). Article 1 of this so-called Framework Directive states: T his Directive shall apply to all sectors of activity, both public and private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.). 28. The acquis in this area consists mainly of Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303). Its purpose is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation (Article 1); the principle of equal treatment shall mean that there shall be no direct or indirect discrimination whatsoever on any of these grounds (Article 2(1)). The ECJ has given a far-reaching interpretation to the principle of equal treatment on grounds of age; see most recently, Case C-555/07, Kücükdeveci, judgment of 19 January The third and seventh paragraphs of Article 54 of the Turkish Constitution were deleted, which provided that during a strike, the labour union is liable for any material damage caused in a work-place where the strike is being held, as a result of deliberately negligent behaviour by the workers and the labour union and more importantly that politically motivated strikes and lockouts, solidarity strikes and lockouts, occupation of work premises, labour go-slows, and other forms of obstruction are prohibited. 30. The only exception can be found in Bulgaria s accession treaty, which mentions (in its Annex VII) a temporary derogation from the so-called Tobacco Labeling Directive (2001/37) but this directive falls in the sphere of public health/internal market and not so much in the sphere of social policy and employment. Cf. Case C-491/01, British American Tobacco Investments and Imperial Tobacco, judgment of the ECJ of 10 December Cf. section 3.1, on the free movement of workers. 32. On the maternity leave issue, see Bakırcı See, for example, the two Interim Reports from the Commission to the European Parliament and the Council, EC 2009a. EC 2009b. 34. For a summation of the various political statements in light of the Council s 1999 decision to treat Turkey as a normal candidate country, see Independent Commission 2009, 8 and For a typical example, see Hürriyet Daily News, CHP Criticizes EU for Lacking Objectivity, 3 July For the most recent and very critical Progress Reports on Romania and Bulgaria of 18 July 2012, see progress_reports_en.htm. [4n24] [4n25] [4n26] [4n27] [4n28] [4n29] [4n30] [4n31] [4n32] [4n33] REFERENCES ABGS National Programme of Turkey for the Adoption of the EU Acquis, Alyanak, Servet Public Procurement System of Turkey: Towards Full Membership of the European Union. European Business Law Review 18: Bakırcı, Kadriye Protection of Women Employees before and after Childbirth in Turkish Employment Law. International Journal of Comparative Labour Law and Industrial Relations 22: European Commission (EC) Key Findings of the Monitoring Report on Romania s Preparedness for EU Accession, MEMO/06/346, Brussels, 26 September, [4.105] [4.109]

109 Turkey s Accession to the European Union European Commission (EC). 2008a. Communication from the Commission to the European Parliament and the Council, Enlargement Strategy and Main Challenges , Brussels, 5 November, COM(2008) 674 final, European Commission (EC). 2008b. Enlargement Strategy Report 2008, Brussels. European Commission (EC) Interim Report from the Commission to the Council and the European Parliament, On Progress in Bulgaria/Romania under the Co-operation and Verification Mechanism, Brussels, , COM(2009) European Commission (EC) Enlargement Strategy Report , Conclusions on Turkey, European Commission (EC) Communication from the Commission to the European Parliament and the Council, Enlargement Strategy and Main Challenges , COM (2011)666 final, Brussels, European Commission (EC) Progress Reports on Romania and Bulgaria of 18 July 2012, European Parliament and the Council of the European Union Directive 2006/ 123/EC of 12 December 2006 on Services in the Internal Market, OJ 2006, L 376. Göçmen, İlke To Visa or Not to Visa: That Is the (Only) Question, or Is It? Legal Issues of Economic Integration 37: Hürriyet Daily News CHP Criticizes EU for Lacking Objectivity, 3 July. Implementation of Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the Capital Adequacy of Investment Firms and Credit Institutions (Recast). OJ 2006, L 177/201. Independent Commission Second Report of the Independent Commission on Turkey. British Council and Open Society Foundation, Karagöz, R Free Movement of Capital in the Context of Turkey s EU Candidature. Ankara Bar Review 5(1):1, Lazowski, A And Then There Were Twenty-Seven: A Legal Appraisal of the Sixth Accession Treaty. Common Market Law Review 44: Neuwahl, Nanette A. E. M The EU-Turkey Customs Union: A Balance, but No Equilibrium. European Foreign Affairs Review 4: Rogers, N Turkish Association Agreement Applications: A Myriad of Problems and Some Solutions. Journal of Immigration Asylum and Nationality Law 20(4): Tezcan/Idriz, Narin Free Movement of Persons between Turkey and the EU: To Move or Not to Move? The Response of the Judiciary. Common Market Law Review 46: Tezcan/Idriz, Narin, and Piet Jan Slot Free Movement of Persons between Turkey and the EU: Hidden Potential of Article 41(1) of the Additional Protocol. CLEER Working Paper, 2010/2, _32302CLEER%20WP% %20-%20TEZCAN-IDRIS%20& %20SLOT.pdf.

110

111 FIVE Constraints Regarding Turkey s Economic Integration into the European Union Belgin Akçay 1 [5.0] Efforts for economic integration have increased throughout the world especially since the 1960s as more countries have indicated interest in becoming members of the integration effort, desiring to benefit from the advantages economic integration would bring, such as security and economic benefits. The European Union (EU), established in 1957, is an example of the most advanced economic integration of the world. Turkey is one of the few countries that applied for membership in 1959, very shortly after the establishment of the EU, in order to achieve economic integration. The relationship between Turkey and the EU, which has been ongoing for approximately fifty years, has reached an important stage in recent years, although there have been some disruptions during the course of the intervening years. After the effect of Customs Union (CU) status, granted in 1996 between Turkey and the EU, and of candidate country status in 1999, the integration relationship gained new dimensions. Now, Turkey s objective is full membership in the EU. [5.1] However, by the time candidate country status was allotted to Turkey, the conditions for acceptance as full member into the EU had changed. From the first enlargement of the EU in 1973 to the fifth expansion in 2004, it was sufficient to be only a European nation as far as the geographical location was concerned, and such detailed criteria as are required today were out of the question. Since the Treaty on European Union (TEU/Maastricht Treaty), it has not been adequate for a country wishing to become a member of the EU to be only a European state; now

112 Belgin Akçay this country should also be a state of law, it should guarantee democracy, and it should have an institutional structure that exhibits respect for human rights and fundamental freedoms. Thus, the EU decided during the Copenhagen Summit that those countries wishing to participate in the EU should accomplish some criteria established in the context of liberal doctrine, the so-called Copenhagen Criteria, imposing ideological preference as obligation for membership under the Treaty on European Union (TEU). 2 The Copenhagen Criteria are classified into three groups, as political, economic, and compatibility criteria. In addition, at the 1995 Madrid summit it was emphasized that member countries must have created the conditions for their integration through adjustment of their administrative structures (absorption capacity). While it is important that European Community legislation can be transposed into national legislation, it is even more important that the legislation be implemented effectively through appropriate administrative and judicial structures. This is a prerequisite of mutual trust essential for membership into the EU. As can be seen, by obtaining candidate country status, Turkey has assumed economic obligations in addition to political and legal obligations. However, after EU-Turkey relations entered a new phase in 1999, both parties clearly declared that their intention was full membership, and although it was explicitly stated that the purpose was to advance the economic integration relation between the parties, certain artificial obstructions created in this regard have delayed the progress toward this goal. In this study, the level of economic integration between Turkey and the EU already reached, the efforts Turkey has exerted in meeting the Copenhagen economic criteria to achieve full membership after obtaining candidacy status, and the existing restrictions that impede the rapid advancement of this integration relationship will be discussed. [5.2] [5.3] [5.4] [5.5] DEVELOPMENTS IN THE TURKISH ECONOMY AFTER ACHIEVING CANDIDACY STATUS The beginning of the relationship between Turkey and the EU is much, much older than EU relations with countries that are currently also candidate countries like Turkey, and in fact older than that of numerous other countries that have become full members (such as Spain, Finland, Poland, and Romania). Turkey s relations with the European Union were initiated on 31 July 1959, with its application to the European Economic Community, and with the Ankara Agreement signed on 12 September 1963, when the content of this relationship was drawn up. The integration process, which [5.6] [5.7] [5.8]

113 Constraints Regarding Turkey s Economic Integration into the European Union experienced an interruption by the decision of the EU in 1982 to freeze its relations with Turkey, was then restarted with Turkey s membership reapplication in During the Helsinki Summit in December 1999, candidacy status was acknowledged for Turkey. As agreed at the European Council in December 2004, accession negotiations were launched on 3 October 2005, with the adoption of the Negotiation Framework by the Council of the European Union. The Negotiation Framework document takes account of the experience of the fifth enlargement process and of the evolving EU acquis. The framework includes the principles governing the negotiations, the substance of negotiations, and negotiating procedures, and it lists negotiation chapter headings. Accession negotiations describe the time frame allowed for Turkey to fully and effectively adopt the EU acquis to her own legal system. The EU acquis 3 has been categorized under thirty-five chapters (ABGS 2011). [5.9] Since 1999, when Turkey received candidacy status, because it was the EU s objective to establish a single European market based on market economy among the member countries, Turkey has taken more concrete steps in the liberalization of the markets that began in the 1980s. This purpose has mandated that new members have economic arrangements similar to EU-15 countries, and it has led the way to determine the economic criteria (Copenhagen economic criteria) toward this end. Consequently, today it is expected of countries that apply to become members that they have an effective market economy able to fulfill the Copenhagen economic criteria, with the capacity to withstand the powers of the market and the competition existent within the Union. [5.10] After receiving candidacy status, every country prepares a National Program that defines the priorities for achieving the said criteria,. In 2001, Turkey prepared its first National Program for the adoption of the EU acquis, listing its priorities. 4 In the National Programs prepared later (2003, 2008), Turkey has clearly indicated the importance it has given to this objective by stating, Accession to the European Union is a national target, supported by our people. This aim... is also an integral part of Turkey s strategic vision (ABGS 2003; 2004, 1). As a matter of fact, the efforts exerted later by Turkey to achieve this are an indication of the importance placed by Turkey on this objective. [5.11] In evaluating developments in the economy, it can be seen that Turkey made significant progress in the workings of its market economy and in increasing its power to compete as a result of efforts applied after obtaining candidate country status. Especially with the structural reforms implemented after the gravest economic crisis in the history of the Republic (February 2001) and the application of stable economic policies, the Turkish economy as of 2003 has reached a stable macroeconomic structure with positive attributes. As a matter of fact, the magnitude of the economy, which was $459.7 billion in 1997, grew more than twofold, reaching $1,054 trillion in 2011; the per capita income in Turkey increased

114 Belgin Akçay by twofold as compared to 1997 and reached $14,616 in Although per capita income in 2010 increased as compared to the previous year, it is approximately at the 48 percent level of the average income existent in EU-27 (IMF 2011; EC 2011, 111). According to a projection made by Goldman Sachs, the per capita income in Turkey for the year 2050 should be around 75 percent of the per capita income within the EU (Goldman Sachs 2008, 2 7). Additionally, when comparing the per capita income between Turkey and the other EU countries, the per capita income in Turkey exceeds the income of those countries that have joined the EU most recently, Romania and Bulgaria (IMF 2011). The Turkish economy, which consistently grew after the 2001 crisis, realized real growth above the average of the EU-27 until the global impact from the subprime mortgage crisis initiated in America. While the Turkish economy grew 4.5 percent on an annual average during the term, the average growth of the EU-27 was 2 percent. After struggling with high inflation for many years, Turkey has demonstrated significant success in controlling inflation and has overseen an inflation rate decline from two-digit figures (99.1 percent), to a single-digit figure (6.3 percent) in But this rate increased to two-digit figures in 2011 (table 5.1), largely as a result of the global crisis. Turkey s inflation rate is currently above the EU average, although it is targeted to be reduced to 4.9 percent during 2011 (SPO 2010, 16). During the decade of , while demonstrating growth quite above EU-27 (except for the periods of crisis), Turkey s average ranked seventeenth by 2009, moving up six steps in the GDP listing from where it had ranked when it received candidate country status (WB 2011). Moreover, Goldman Sachs (2011), which separated out some countries from Next 11 those that are at least 1 percent of global GDP has started to call them growth markets. Eight countries, including Brazil, Russia, India, China, and South Africa (BRICS) and the largest Next 11, currently have satisfied this criterion. These are the economies that are most likely to experience rising productivity coupled with favorable demographics and, therefore, a faster growth rate than the world average going forward. One of these economies is Turkey. 5 [5.12]

115 [Table5.1] Table 5.1. Some of Main Economic Indicators Growth Rate (%) (*) EU Turkey Inflation Rate (%) EU Turkey Unemployment Rate (%) EU Turkey Public Debt (as % of GDP) EU Turkey Budget Deficit (as % of GDP) EU Turkey Source: Eurostat 2011; HM Constraints Regarding Turkey s Economic Integration into the European Union

116 Belgin Akçay Turkey has been more successful than most of the EU member countries in achieving the financial discipline that the EU set as a standard for member countries after initiating the objective to establish an area of economic and monetary union (EPB). The strictly applied financial discipline was reflected in the debt figures. While the ratio of the foreign debt to GDP decreased (43.9 percent), the public debt/gdp ratio dropped from three-digit figures to 39.5 percent in Although this figure did increase to percent in 2009, it was much lower than the EU-27 average of 73.6 percent (table 5.1). Especially in 2011, the difference between Turkey and the EU had mounted up, since the debt crisis of the EU (EU percent, and Turkey 42.4 percent). Additionally, the debt structure in Turkey improved and was converted from short term to long term and then to fixed interest rates. The improvement in the public debt was reflected in the public budget, and the budget deficit/gdp ratio, which was 7.7 percent in 1997, decreased to 1.4 percent in 2011 and remained below the EU-27 average ( 4.5 percent) (table 5.1). The ratio of the foreign direct investment (FDI) in the total foreign capital coming to Turkey has comparatively increased from The ratio of the FDI to the GDP, which was at very low rates such as 0.4 to 0.55 percent since 1997, had increased to 4.9 percent by However, in 2009 it dropped to 1.3 percent because of the effect of the latest global financial crisis. The structure of the foreign capital coming in in the form of FDI changed as of Except for the purchase of real estate, while the dominant sector in 2003 among the FDI was the manufacturing industry (60 percent), the share of this sector dropped in the ensuing years, and the coming FDI moved to the service sector, where profit transfers can be made much more easily. For example, at least 60 percent of the FDI coming into the country during went to the service sector, and the financial sector assumed first place; in 2009 the share of the financial sector was 41 percent. While the total share of EU-27 was 75 percent in 2008, with the biggest share in the FDI, it went up to 79 percent in 2009 (DTM 2012). The latest financial crisis has narrowed the volume of foreign capital movement in all the world. Consequently, the amount of FDI coming to Turkey dropped to half in 2009 as compared to the previous years, and the ratio of the total foreign investment coming against the GDP was below 2 percent by 2009 ($6 billion) (HM 2012). The increasing trend as of 2002, and the ensuing growth of the current deficit, decreased with the effect of the global crisis in 2009, when it dropped to 2.3 percent of the GDP; then it began to rise in However, it has reached 10.5 percent, although the official estimates stated that the deficit in the coming three years will be at the rate of 4.5 percent of the GDP (SPO 2010, 12). This level is higher than the level of 2006 (8 percent) that the Commission stated was manageable in its Progress Reports (CEC 2006, 32; CEC 2007a, 26). When compared to the other countries, the deficit was financed with short-term foreign capital that found the high [5.257] [5.258] [5.259]

117 Constraints Regarding Turkey s Economic Integration into the European Union interest rates very attractive, and it is envisioned that the deficit is manageable for only as long as the high interest rates continue. Therefore, the necessary measures should be implemented very rapidly to decrease the deficit even more for macroeconomic stability. Furthermore, Turkish foreign debt is continuing to rise. The foreign debt, which was gross $84.3 billion in 1997, increased about fourfold and went up to $309.6 billion in However, with the increasing GDP, the total foreign debt in 2008 decreased to 37.4 percent against the GDP and went up to 39.7 percent again in 2011 (table 5.1). [5.260] The economic policies implemented in Turkey after 2000 were well received by the international markets, and the exchange rate and interest policies made foreign borrowing attractive and consequently increased the debts incurred by the private sector. Especially after 2005, the decreasing portion of the public foreign debt was replaced by the private sector, and the share of the private sector in the total foreign debt exceeded 60 percent (table 5.1). [5.261] Actually, the abundance of foreign currency in Turkey in recent years stems from the globally increasing liquidity. At the point where we are today, the global liquidity created by the central banks initially has now been replaced more and more by the private equities funded by investment banks via new borrowing tools such as hedge funds and carry trade. With the effect of the increased global liquidity, the terms of the debts have been expanded and the cost of borrowing has been reduced. The optimistic picture the world economy created as a result of the increased global liquidity began to change with the crisis in the U.S. housing mortgage sector toward the end of July Moreover, this risk has caused lenders to be more careful about the duration of the loans and to be more selective of those who are requesting funds. While this situation has reduced global liquidation, it has also increased the cost of credits. 6 It is obvious that these developments in the world financial markets will cause emerging economies such as Turkey, which has a continued need for foreign financing in increasing amounts, to acquire loans at higher costs, which in turn will adversely affect its economy. [5.262] One of the positive developments in the Turkish economy since the 1990s is its increasing ability to compete. While the ability of the exports to meet imports, which is taken as the indicator of the ability to compete, was 51 percent in the year 2000, it increased to 65.4 percent during This ratio, which reached 100 percent for EU-27 in the year 2002, decreased to 83 percent in the ensuing years (figure 5.1). [5.264] The average level of unemployment in Turkey, which is above the EU-27 average (9.7 percent), began to increase, particularly after the 2001 crisis. However, after reaching 14 percent in 2009 it decreased to 10.5 percent in 2011, because of the high growth rate during recent years. Also, the rate of youth unemployment, which was 15 percent in the 1990s, is continuing to rise (21.5 percent in 2011). These high ratios are

118 Belgin Akçay Figure 5.1. Compare to Competitiveness (%) [export/import] Source: DTM 2011; Eurostat indications that new job opportunities have not been created in spite of the high growth rate of the economy. Inability to create the workforce supply in the quantities demanded by the labor market is one of the obstacles in solving the unemployment problem. As is characteristic today in the EU economy, the problem of unemployment continues to be one of the priority issues in the Turkish economy as well. ECONOMIC INTEGRATION WITH THE EUROPEAN UNION The level of integration preferred by the countries in the economic integration effort (free trade area, custom union, monetary union, or economic union) affects both the degree of integration and the obligations of the parties. For example, while in the economic and monetary union (EPB) phase, which is the most advanced phase of the integration process, the use of the common currency, the free flow of the factors, and adaptation of the economic policies are in question in the Customs Union (CU) integration. The free flow of commodities among those countries party to the CU, and the application of the common commercial policy to the third countries, are in question. Currently, the economic integration between Turkey and the EU depends upon the implementation of the CU, on one hand, and the efforts to fulfill the Copenhagen Criteria to advance the integration level for full membership in the EU on the other. The CU process, based on the Ankara Agreement, was concluded with the Association Council Decision [5.265] [5.266] [5.267]

119 Constraints Regarding Turkey s Economic Integration into the European Union number 1/95 (ACD 1/95), signed on 5 March 1995 and entered into effect on 31 December 1995, in accordance with article 65 of the decision. This decision enabled the implementation of the provisions of the Free Flow of the Commodities and Trade Policy on the goods outside of agricultural products (ACD 1/95, Article 2). The formation of the CU goes beyond a normal CU, as it also covers the harmonization of technical legislation, the abolishment of monopolies, and the protection of intellectual property rights. Moreover, negotiations have been initiated regarding the mutual opening of the public procurement markets, liberalization of trade in services, and the abolition of restrictions on the freedom of establishment. These policies would prepare Turkey for full membership status in the EU. [5.268] Turkey has achieved great harmony with the EU regarding customs laws with the work it has already conducted in this regard. This situation was mentioned in the Progress Reports prepared by the Commission. Turkey has removed all customs and equivalent taxes on EU industrial products (including the industry share collected from processed agricultural products), has begun to implement the common customs tariffs to third countries, and also has successfully implemented the Free Trade Agreements (FTAs), which are obligatory in accordance with article 16 of ACD 1/95. As a matter of fact, Turkey has implemented these agreements without receiving sufficient support from the EU (Dönmez 2012, ). [5.269] One of the indicators of economic integration with the EU is the volume of mutual trade between the parties. Trade liberalization has been an important aspect of Turkey s economic policy since the early 1980s. The formation of the CU between Turkey and the EU, which covers trade in industrial goods and processed agricultural products, has had a very positive effect on trade between the parties. While the volume of foreign trade between Turkey and the EU was $36.9 billion in 1995, it increased approximately threefold to $138.2 billion in 2008, and in 2011 reached $153.5 billion after dropping to $103.5 billion in 2009 as an effect of the global crisis experienced because the former EU-15 countries were among the most affected by the subprime mortgage crisis (SPO 2012). [5.270] Turkey has continued its high growth rate in trade with the EU over the last twenty-five years. At the time when the CU came into effect ( ), Turkey s exports to the EU grew on an annual average by 12.5 percent, and imports by 15 percent. During , the average growth rate of the exports and imports of Turkey, following the CU but excluding the period of crisis, 7 continued with its growth rate in spite of the variety in the number of countries traded with by Turkey. 8 This narrowed down Turkey s exports to the EU in 2009 as never before (the drop in exports as compared to the previous year was 25.9 percent), since many of the EU countries, especially the EU-15, went into recession with the latest crisis. However, Turkey s exports to the EU increased again in 2011 (SPO 2012).

120 Belgin Akçay Today, the European Union is Turkey s largest trade partner. While the share of the total exports to the EU was 46.6 percent in 1997, it increased to 57 percent in 2007 and maintained its high level despite following a downward trend to 46 percent in However, Turkey s share of the total exports from the EU went into a upward trend after 2009 and increased slightly to 46.2 percent by the end of In 2011 this level was ongoing (figure 5.2). Consequently, trade integration with the EU has remained high, although the EU s share of Turkey s total trade decreased from 42.6 percent in 2009 to 41.7 percent in 2010 (EC 2011, 2). The other indicator of increase in economic integration is the increased foreign capital movement within the parties. An important part of foreign capital inflow into Turkey in the form of foreign direct investments (FDI) is from the EU. As a matter of fact, the share of the FDI originating from the EU was 76 percent of total FDI inflows in By the same token, approximately two-thirds of the GDP stock, reaching approximately 20 percent of FDI stock, is of EU origin (EC 2011, 52). As can be seen, the elimination of barriers in the entry and exit of commodities and capital has increased the trade and economic integration of Turkey with the EU. Trade liberalization has intensified economic integration of Turkey both with the EU and the rest of the world. Thus, the openness of Turkey in terms of its total export and import / GDP ratio has increased. Openness depends not only on trade policies, but also on other factors like the sectoral structure and the size of the economy. The ratio of openness for Turkey has gradually increased overall, with exceptions in 2002, 2003, and While Turkey s ratio of openness 10 was 33 percent in 1997, it [5.271] [5.273] [5.274] Figure 5.2. Share of EU-27 in Foreign Trade of Turkey (%) Source: DTM 2012.

121 Constraints Regarding Turkey s Economic Integration into the European Union decreased with the 2001 crisis and then, by increasing every year except 2009, it achieved 35 percent in 2011 (DTM 2012). [5.275] Turkey currently has a more open economy as compared to the majority of the EU members; for example, in 2006 the openness rate in France was 27.2 percent and in Greece 25.5 percent. On the other hand, it is as open as the major economies of the EU such as the UK (27.9 percent), Italy (27.9 percent), and Spain (29.5 percent) (Baldwin and Wyplosz 2009, 353). [5.276] In light of the evaluation above, although some problems continue to exist in the Turkish economy, it is clear that Turkey has a market economy whose competitive power is increasing, and also it continues to record progress in many areas, including the provision of macroeconomic stability. At the same time, trade and economic integration with the EU has continued to remain high. [5.277] CONSTRAINTS ON THE ECONOMIC INTEGRATION PROCESS FOR TURKEY S ENTRY INTO THE EUROPEAN UNION [5.278] Turkey is one of the few countries that have established CU relation status with the EU without becoming a full member. 11 As stated in the previous section, as a result of establishing CU relations and of Turkey s efforts to fulfill the Copenhagen Criteria, the economic integration between the EU and Turkey has increased. However, there are certain constraints to the efforts to advance the economic integration further. The first of these constraints is discrimination in the distribution of financial assistance; then constraints that preclude the efficient operation of the CU; and constraints over the negotiations regarding the economic chapters that could contribute immensely to the advancement of commercial and economic integration between the parties. [5.279] Today, as with many of the EU countries, there are some problems in the Turkish economy, but in spite of this, Turkey is more successful in certain areas than some member countries. For example, like Turkey, several EU countries are struggling with the unemployment problem. While EU countries have an aging population, Turkey has a young and dynamic demographic. Furthermore, Turkey in recent years has to a great degree succeeded in achieving financial discipline, while the majority of the EU countries have not, and Turkey has a more dynamic economy as compared to several of the EU member countries. [5.280] Although Turkey s trade and economic integration with the EU lacks some of the opportunities offered to the members, because Turkey is not a full member, it is at an advanced level and bears the characteristics, in many aspects, of having the strength to compete and be a functioning market economy. The Commission, from the first Progress Report (1998) throughout all, has been saying that Turkey has a functioning market

122 Belgin Akçay economy (CEC 1998, 26, 29; EC 2009, 3). Just like most of the EU countries, as a result of the implementations made by Turkey in keeping with its decision at the start of the 1980s to enter into a free market economy, the share of the public sector in the total economic activities has been gradually reduced. In fact, together with the reduced share of the public sector, the total production share of the private sector increased to 89 percent of the GDP in mid-2008 (CEC 2008, 33). Likewise, the public share in the banking sector has also decreased. In the banking sector in 1997, while the share of the public banks in the total assets was 40 percent, it dropped to 30 percent in 2006 and maintained this level in Again, while the share of the state economic enterprises (SEEs) in the GNP was 8 percent in 1999, it dropped to approximately 5 percent as a result of privatization (EC 2011, 45 46). However, in spite of the progress achieved from the functioning of the market economy, certain problems continue. For example, completion of the formalities in exiting from the market is still expensive and takes a long time. Bureaucratic process and slowness constitute a crucial barrier to the supremacy of the law, and the time lag between the adoption of framework legislation and its implementation is often long, which then diminishes the effectiveness and anticipation of the legal system, and the implementation of the legislation on intellectual property rights is not adequate (EC 2011, 45). In addition to the weakness of the quality of its labor, and in spite of high economic growth and the FDI, which has reached an important level in recent years, high unemployment in the educated workforce, high unemployment rates for the young, and low employment of females, as well as insufficient infrastructure, continue to remain as problems in the Turkish economy (EC 2011, 46). However, as stated in the Broad Economic Policy Guidelines (BEPG) prepared as a recommendation for EU member countries and approved by the Council, these problems also exist in many of the EU member countries (e.g., Romania, Bulgaria) (EC 2004; 2010). As stated in the first section, when the EU-27 average is taken into consideration, there are differences between Turkey and the EU with respect to economic development and significant macroeconomic indicators. However, this situation is not unique to Turkey and is characteristic of many of the EU member countries. As a matter of fact, in some of the reports prepared by the Commission, coordination between the member countries on economic policies for the constitution of a single European market was emphasized, and that increased coordination would assist in eliminating the differences in growth, inflation, and competitiveness (EC 2010b, 3; 2008, ). [5.281] [5.282]

123 [5.283] Financial Aid Constraints Regarding Turkey s Economic Integration into the European Union [5.284] The primary constraint in advancing the economic integration between Turkey and the EU is the discriminatory attitude of the EU in providing financial aid. Although economic integration of a country with one or several other countries has its positive effects, there is also a negative cost factor. As has been the practice with the EU, costs incurred by the countries that were full members when the CU was established, or costs incurred by countries with weaker economies for the structural reforms they underwent to increase their competitiveness in the establishment of a single European market, were reduced to the extent possible with financial aid provided by the Union budget and other transfers. [5.285] The financial aid and other transfers made from the Union budget for the financing of various projects are viewed as very important and necessary tools for facilitating and expediting the countries economic integration in harmony with the EU, and for eliminating the developmental differences both within the member countries and between the member countries. All countries given candidate status or full membership can benefit from the EU s financial assistance. In addition to the financial assistance, there are certain funds (European Regional Development Fund, European Social Fund, European Agricultural Guidance and Guarantee Fund, etc.) considered as structural funds, which are available to only the EU member countries. These funds, which have existed since the founding of the EU, have become more and more complementary and supplementary, although there have been some changes in their operation and function over time. As with the financial assistance, the purpose of these funds, which are allocated to countries with weak economies, is to reduce the differences in their economies and allow for development between the EU member countries as well as between the regions within the member countries. Thus, it will be possible for all the members to develop together and the objective of a single European market with strong competitive powers will have been achieved. 12 [5.286] Turkey, as a candidate country, is also benefiting from aid that the EU had committed to give to the candidate countries in the process prior to their membership. However, the aid received by Turkey, when compared to the aid granted to the previous candidate countries, is very limited. For example, when compared with the countries which have received the highest aid, during the period of Turkey received Euro 3.8 billion, while the total aid received by Greece was 95 billion and by Spain billion (figure 5.3). [5.288] The aid received by Turkey, which has been in a relationship with the EU for over fifty years, is also below the aid received by the countries that initiated entry into economic integration with the EU in the 1990s. The financial assistance given to the Central and East European Countries

124 Belgin Akçay Figure 5.3. Aid Granted by the EU for Some Countries (million ) [net grants] Source: Prepared benefiting from Bilici 2010, (CEECs), 13 which became members on 1 May 2004, and to Bulgaria and Romania, which achieved membership on 1 January 2007, is far above the aid granted to Turkey. Although the aid granted to Turkey in recent years has significantly increased, as shown in figure 5.3, the aid received by the CEECs was twenty times more and the aid received by Bulgaria and Romania was approximately four times more. The natural result of the low amount of aid granted to Turkey is the low annual average aid amount per capita. The amount of aid per capita in Bulgaria and Romania is 520, in CEEC 1,016, in Spain 3,005, in Greece 8,772 while in Turkey it amounts to merely In addition to the assistance provided by the EU, European Free Trade Association (EFTA) countries allocate financial assistance to the EU member countries as well. The EU and the EFTA countries (Norway, Iceland, and Lichtenstein) signed the European Economic Area Agreement on 2 May 1992 and established the European Economic Area (EEA). Later, during the expansion process of the EU, new members have entered the EEA. As with the establishment of the EEA, EFTA had decided to support EU member countries party to the EEA in order to reduce the differences in the standards of living and to increase the economic and social progress between the member countries and their regions. The total financial assistance paid during the term with the EEA Financial Mechanism and the Norwegian Financial Mechanism, at different periods under this scope, amounted to 1,926.6 million (table 5.2). The assistance by the EFTA countries was given to the same countries in the manner financed by the EU. [5.289]