JOOST LAGENDIJK

Breaking: Another brick in the visa wall removed

One should be careful these days when labeling something “breaking.” »»

One should be careful these days when labeling something “breaking.” Every day I receive at least five tweets that start with the words “breaking news” and continue with the announcement of a special event or a spectacular occasion that should definitively not go unnoticed. The result of so many “breaking” moments per day is that the really special ones don’t get the attention they deserve.

So forgive me for suggesting that a letter sent last Friday to the Dutch parliament by the minister responsible for migration and integration should indeed be interpreted as a “groundbreaking” development.

In the letter, the minister reacts to a ruling of the Dutch Raad van State (RvS), the Council of State, highest advisory body to the government, of March 14, 2012.  In that judgment, the RvS ruled that the Netherlands does not have the right to impose visa requirements on Turkish service providers and self-employed Turks who want to go to the Netherlands.

The RvS used the same arguments that have been used before by other courts in EU member states and by the European Court of Justice. All refer to the Additional Protocol of the Ankara Agreement between Turkey and the EU, which entered into force in 1973. Part of that protocol is a so-called “standstill clause” that prohibits visa requirements for Turkish citizens for a number of EU member states that did not require such a visa at the time the protocol came into force. In other words, if the Netherlands did not require Turks to apply for a visa in 1973, they are not entitled to ask for one now. Despite this legal prohibition, many countries did introduce visa requirements after 1973. According to a growing number of European courts, this practice is illegal and should be stopped.

These rulings have been highlighted many times by the Turkish government to make the argument against the present visa regime.

Till now, however, no breaking results could be presented. The Dutch government, in line with other EU countries, always reacted by saying that these court rulings dealt with individual cases that would not have an effect on their overall visa policy.

Now, for the first time, the Dutch government has acknowledged that the RvS ruling means that the Netherlands has to change its visa policy for Turkish service providers and self-employed individuals who want to go to the Netherlands to offer their services and wish to stay no longer than three months.

From Aug. 15 onwards, Turkish businesspeople who can prove they work for a service provider or are self-employed will be able, if they so wish, to go to the Dutch consulate and get proof of their status, making it easy for them to pass customs after arrival in the Netherlands. This is a profound change of policy that can rightfully be called “breaking.”

It raises two further questions, one practical and one principled. The short-term problem will be how to determine who is an entrepreneur and who is not. In Turkey, it is relatively easy to start your own business. I am not quite sure whether the Dutch authorities have realized the problems that might arise if huge numbers of Turks present themselves as new, self-employed businessmen or women. The second issue is of a more theoretical nature, but could prove to be the real cliffhanger. Several German courts have already established that one cannot draw a distinction between providers and recipients of services. That would mean that not only Turkish service providers should be allowed to travel visa free, but that the same should apply to Turkish tourists who want to go to Germany to enjoy certain services.

In order to get some clarity on this extremely important and sensitive issue, a German court has asked the European Court of Justice to make a so-called preliminary ruling in a case initiated by Leyla Ecem Demirkan. She claims that Turks who want to visit their families in Germany for a period of no longer than three months should be considered potential recipients of services in Germany, and should therefore be treated in the same way as service providers: no visa requirement. If the court in Luxemburg agrees with that interpretation, one should use the word “BREAKING” in the articles covering this ruling because it would have implications for all Turks traveling to any EU member state.

For most observers the conclusion is already clear: The present EU visa policy for Turks will have to change. The only question is when and how.

2012-07-17

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Columnist:: JOOST LAGENDIJK