Legal Constraints on EU Member States in Drafting Accession Agreements: The Case of Turkey

✍ Scribed by Narin Idriz

• Publisher: Springer
• Year: 2022
• Tongue: English
• Leaves: 336
• Series: Studies in European Economic Law and Regulation, 12
• Category: Library

✦ Synopsis

Do Member States of the EU have a free hand in drafting Accession Treaties, or are there legal constraints on their primary law-making powers in this regard? That is the main question this book addresses. It argues that such constraints do exist, and seeks to identify them, thereby providing a number of insights into the nature of the EU’s legal order. The point of departure as well as the main focus of the study is the proposed permanent safeguard clause (PSC) on the free movement of persons in the Negotiating Framework for Turkey. Legal provisions, rules, principles and norms that might constrain Member States in this regard are identified with reference to the PSC.

The book examines constraints on Member States stemming from three sources of EU law: Association Law, based on the existing legal framework built on the EEC-Turkey Association Agreement (Part I); EU Enlargement Law, comprised of past practice and existing EU rules on enlargement (Part II); and the foundations of EU Constitutional Law (Part III), which constrain Member States whenever they act within the scope of Union law both as primary and secondary lawmakers. Part III reveals what the Court of Justice of the EU considers to be the essence or the ‘very foundations’ of the Union’s legal order, which it protects against encroachment. This is similar to what some constitutional courts do to protect the ‘inner unity’ or ‘basic structure’ of their constitutions.

The findings of this book can be applied to the accession of any candidate state. It also sheds light on important implications for future treaty amendments, and for identifying possible limits to differentiated integration.

✦ Table of Contents

Contents
List of Abbreviations
Chapter 1: General Introduction
1.1 Starting Point
1.2 Existence of Legal Constraints´´: Nature of the EU Legal Order 1.2.1 Constitutional or Not? 1.2.2 Evolution Towards Further Entrenchment of Rights 1.3 Nature ofLegal Constraints´´: Theoretical Definition
1.4 Identifying Legal Constraints´´: Operational Definition 1.4.1 Methodology 1.4.2 The Permanent Safeguard Clause (PSC) 1.5 Structure of the Book 1.5.1 Part I: Legal Constraints Flowing from EEC-Turkey Association Law 1.5.2 Part II: Legal Constraints Flowing from the Accession Process 1.5.3 Part III: Legal Constraints Flowing from the Constitutional Foundations of the Union 1.6 Summary References Part I: Legal Constraints Flowing from EEC-Turkey Association Law Chapter 2: Association as a Stepping-Stone to Membership 2.1 Introduction 2.2 Defining `Association´ 2.3 Principles of Practice and Association as a Flexible and Evolving Tool 2.4 Different Models of Association 2.4.1 Associations Based on a Customs Union 2.4.2 Associations Based on a Potential Customs Union 2.4.3 Association Extending the Internal Market: The EEA 2.4.4 Associations Based on a Free Trade Area 2.4.5 Associations Based on a Deep and Comprehensive Free Trade Area 2.5 Conclusion References Chapter 3: The Ankara Association Law 3.1 Introduction 3.2 Aims and Structure of the Agreement 3.3 Ankara Association Law 3.3.1 The Customs Union 3.3.2 Free Movement of Persons 3.3.2.1 In the Ankara Agreement 3.3.2.2 In the Additional Protocol 3.3.2.3 In the Association Council Decisions 3.3.2.3.1 Decision 2/76 3.3.2.3.2 Decision 1/80 3.3.2.3.3 Decision 3/80 3.3.2.4 Case Law of the Court of Justice 3.3.2.4.1 Establishing the Court´s Jurisdiction 3.3.2.4.2 Aims and Nature of the Standstill Clauses Case Law on Free Movement of Workers First Mention of the Standstill Clause Broadening the Scope of the Standstill Clause by Interpretation Further Broadening: Article 13 Covers Rules of Entry into a Member State Demir: Partial Tightening of the Scope of Article 13 by Allowing for Derogations Family Reunification Under Article 7 of Decision 2/76 and Article 13 of Decision 1/80 Current State of Affairs Freedom of Establishment Tum and Dari: The Right to First Admission for the Self-Employed Dogan: The Right of the Self-Employed to be Accompanied by Their Family Members Current State of Affairs Freedom to Provide Services Soysal: Establishing Visa Requirement is `a New Restriction´ under Article 41(1) AP Demirkan: Emerging Limits of Association Law Implementation of Soysal and Current State of Affairs 3.4 Conclusion References Part II: Legal Constraints Flowing from the Accession Process Chapter 4: Procedural Constraints 4.1 Introduction 4.2 Past and Present Treaty Provisions Governing Enlargement 4.3 Accession Procedure in Practice 4.3.1 Precedent Set by the First Enlargement 4.3.2 Evolution of the Enlargement Practice 4.3.2.1 Role of the Commission 4.3.2.2 Role of the Council 4.3.2.3 Role of the European Parliament 4.3.3 Practice Governing Enlargement Between 2004-2019 4.3.4 Practice Governing Future Enlargements 4.4 Definition and Consolidation of Negotiation Principles 4.4.1 The First Enlargement as the Source of All Principles 4.4.2 Enlargement to the South: Main Principles Maintained 4.4.3 Enlargement to the North: Main Principles Confirmed 4.4.4 Enlargement to the East: Negotiation Principles Entrenched 4.4.5 Future Enlargements: Respect or Deviation from Entrenched Principles? 4.5 Conclusion References Chapter 5: Substantive Constraints 5.1 Introduction 5.2 The Notion ofAdjustments´´ to the Treaties
5.2.1 Meaning and Scope of the Term Adjustment´´ 5.2.2Adjustments to the Treaties´´ v. Adaptations to Acts Adopted by the Institutions´´ 5.2.3Adjustments´´ in Previous Accession Treaties
5.2.4 Other Measures Facilitating the Full Integration of New Member States
5.2.4.1 Transitional Measures
5.2.4.2 Quasi-Transitional Measures
5.2.4.2.1 Economic and Monetary Union
5.2.4.2.2 Schengen
5.2.4.3 Safeguard Clauses
5.2.4.3.1 New´´ Safeguard Clauses Internal Market Safeguard Clause Justice and Home Affairs Safeguard Clause Membership Postponement (Safeguard) Clause Pre-accession Closer Monitoring (Safeguard) Clause 5.2.4.3.2 The Proposed PSCs in the Negotiating Framework for Turkey 5.3 Changes to the Treaties Going Beyond MereAdjustments´´
5.3.1 Arrangement on Fishing Rights Under the 1972 Act of Accession
5.3.2 Other Measures in Past Acts of Accession Going Beyond Adjustments´´ 5.4 Conclusion References Part III: Legal Constraints Flowing from the Constitutional Foundations of the Union Chapter 6: Constitutional Foundations of the Union as a Constraint on Primary Law Making 6.1 Introduction 6.2 Existence of Constitutional Constraints: Judicial Acknowledgment of theVery Foundations´´ of the Union
6.2.1 Opinions 1/91 and 1/92
6.2.2 Opinion 1/09
6.2.3 Kadi I
6.2.4 Other Relevant Judgments and Opinions
6.2.5 Implications
6.3 Substance of Constitutional Constraints
6.3.1 Fundamental Freedoms
6.3.1.1 Fundamental Freedoms in the Treaties
6.3.1.2 Development of Free Movement of Persons in Secondary Law
6.3.1.3 Case Law on the Freedoms
6.3.1.4 Academic Opinion
6.3.2 Union Citizenship: The Fundamental Status
6.3.2.1 Union Citizenship as Defined in the Treaties
6.3.2.2 Citizens´ Directive
6.3.2.3 Union Citizenship in the Case Law of the Court
6.3.2.3.1 Union Citizenship Taking Shape: First Ground Breaking´ Cases 6.3.2.3.2 Further Developments: Beyond Discrimination, Beyond Material Scope, Beyond Internal Situations? 6.3.2.3.3 Dano, Alimanovic andBenefit Tourism´: Latest Case Law, a Step Back?
6.3.2.3.4 Core of Union Citizenship
6.3.3 Fundamental Rights
6.3.3.1 Snapshot of Recent Case Law
6.3.3.2 Inception and Rise of Fundamental Rights
6.3.3.3 Constitutionalisation of Fundamental Rights by Inclusion in Primary Law
6.3.3.4 Role of Fundamental Rights in the Constitutionalisation of the Legal Order
6.3.3.4.1 As General Principles of Union Law
6.3.3.4.2 As Part of the Charter of Fundamental Rights
6.4 Application of Constitutional Constraints
6.4.1 Are the Very Foundations´´ Impossible to Amend? 6.4.2 Are theVery Foundations´´ Able to Constrain Member States as Primary Law Makers?
6.5 Conclusion
References
Chapter 7: The Principle of Equality as Part of the Constitutional Foundations of the Union: A Case Study
7.1 Introduction
7.2 Internal Market Origin of the Principle of Non-Discrimination
7.2.1 Its Place in the Treaties
7.2.2 Its Development in the Case Law of the Court
7.3 Embedding Equality Deeper into Union Law
7.3.1 Equality as an Established General Principle of EU Law
7.3.2 Equality as Part of Union Citizenship
7.3.3 Expanding Scope of Equality in the Treaties
7.3.4 Equality as Enshrined in the Charter
7.4 Principle of Equality of Member States
7.5 Conclusion
References
Chapter 8: General Conclusion