Legal aspects of Turkey’s Accession to the European Union:
Temporary and Permanent Derogations from the EU’s Economic Acquis?
Ronald H. van Ooik1 and James H. Mathis2
DRAFT SEMINAR VERSION – NO CITATION OR USE WITHOUT PERMISSION OF THE AUTHORS
1. Introduction
Accession of Turkey to the European Union is (still) a top priority for the country. In the 2008 National
Programme of Turkey for the adoption of the EU acquis, for example, the vital importance of accession is
formulated in the following terms:
Accession to the European Union is the principle 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.
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.3
This paper surveys recent monitoring reports on Turkey’s ability to assume the obligations of EU membership,
and then draws a comparative to the recent (2007) accessions of Romania and Bulgaria. For this purpose the
recent (2008) Turkey Progress Report (PR) 4 is used for those chapters that are identified as ‘slow’ or ‘low’
alignment by the Enlargement Strategy Communication (ES) (2008).5 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 2006.
This gives an indication as to the progress achieved near the time of accession and the final recommendations for
entering the accession treaties. For a balanced approach, we include regular references to the most recent
National Programme for the adoption of the EU acquis, approved by the Turkish government.7
This should give us an idea of how far Turkey has to go in these core market areas in order to resolve a similar
accession treaty with the EU that would have ‘comparable’ transitional arrangements. A caveat on this
methodology can be noted at this point. The former state-controlled economies of Bulgaria and Romania are not
economically similar to the market conditions in Turkey. Neither are the comparative candidates of similar size in
1
Associate Professor in European Union Law, Europa Institute, Faculty of Law, University of Amsterdam.
Associate Professor in International Economic Law, Department of Public International Law, Faculty of Law, University of
Amsterdam.
3
Preamble to “National Programmes of Turkey for the adoption of the EU acquis”, published at:
www.abgs.gov.tr/files/UlusalProgram/UlusalProgram_2008/En/pdf/i_preamble.pdf. For an executive summary, see:
http://ec.europa.eu/enlargement/pdf/turkey/summary_en.pdf.
4
Commission Staff Working Document, Turkey 2008 Progress Report, Brussels, 5 November 2008, SEC(2008) 2699,
published at: ec.europa.eu/enlargement/press_corner/key-documents/reports_nov_2008_en.htm.
5
Communication from the Commission to the European Parliament and the Council, Enlargement Strategy and Main
Challenges
2008-2009,
Brussels
5
November
2008,
COM(2008)
674
final,
published
at:
ec.europa.eu/enlargement/press_corner/key-documents/reports_nov_2008_en.htm.
6
Transitional measures are provided for by Article 20 of the Accession Protocol for Bulgaria and Romania, L 157/29,
21.06.2005. (‘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 157/138.
2
7
See reference in footnote 3.
1
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 that
there are more extensive derogations in subject areas that are not particularly shown as problematic in the
Turkey reports. An example of this might be the greater attention paid to privatization issues in the Bulgaria /
Romania accession, as compared to what might be seen for Turkey in that same category.
2. The Enlargement Strategy report (generally) as to economic and market activities
The overall tone of the Enlargement Strategy Communication is positive as to Turkey’s economic situation from
the more macro perspective:
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
More specifically, as to the (33) 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’:
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, intellectual
property rights, anti-trust policy, energy, enterprise and industrial policy, consumer protection,
statistics, Trans-European Networks, and science and research.9
The ES report, read together with the ‘Key findings in the Progress Report 2008 Turkey’, however notes the
following areas in particular for additional attention: agriculture, fisheries, veterinary and phytosanitary policies,
state aid, justice and home affairs, social policies and employment, environmental protection, public procurement,
company law, food safety, and free movement of services. Moreover, a number of important obligations taken on
by Turkey as part of its Customs Union with the EU remain unfulfilled.10
We will survey the most problematic of these Chapters, at least those in the economic sphere, from the 2008
Progress Report, and make a comparison to the transitional measures contained in the protocols from the two
recent accession countries, Romania and Bulgaria. As was mentioned before, the purpose of doing this is the 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.
3.
The Economic Chapters in the 2008 Progress Report
3.1
Freedom of movement for workers (Chapter 2)
With regard to access to the labour market, the 2008 PR points out that Turkish legislation on work permits for
foreigners that eased procedures and exempted certain professionals from obtaining work permits, including
people working on national and international projects, was vetoed and is still before Parliament. 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 EURES (European employment services) network.
For the co-ordination 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 central and provincial level
also contributed to consolidation of this Institution. The efforts to build “one-stop-shop” social security centres in
8
Enlargement Strategy Report, p. 4.
Enlargement Strategy Report, section from p. 62.
10
Enlargement Strategy Report, p. 63 and Key Findings, p. 2
ec.europa.eu/enlargement/press_corner/key-documents/reports_nov_2008_en.htm).
9
2
(the
latter
also
published
at:
districts are continuing. There have been no developments as regards preparations for the introduction of the
European Health Insurance Card.
The Commission, in its 2008 PR report, concludes that overall limited progress has been made is this area.
Alignment is at an early stage. The administrative capacity needs to be strengthened further.
The 2008 Progress Report is thus silent on possible transitional measures regarding the free movement of
workers. Still, on all previous occasions transitional arrangements on this sensitive freedom have been laid down
in the accession treaties. In the treaties with the eight 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 was provided.
This period can be subdivided into an initial period of 2 years, a subsequent period of 3 years and a final period
of another 2 years.11
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 labour markets by
Eastern European nationals. Before the end of this initial period, 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;12 they only have to notify the Commission whether they will continue applying national measures or
whether they will grant access to their labour market. After those five years, a Member State may continue to
refuse access to its labour 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 7years-transitional period, Member States do not need the approval from ‘Brussels’ but they can decide for
themselves whether or not a ‘serious (threat of) disturbance’ exists.
Assessment – 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 labour markets of the ‘old’ EU Member States. Given the size of the Turkish working force, the
duration of the transitional period may well be longer than 7 years – a period of ten years seems realistic and 15
years seems possible. As in the case with the Eastern European countries, this period will probably be divided into
three sub periods 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.
Some argue that even a permanent derogation from the right of free movement for Turkish workers (and their
families) is advisable. It should however 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.13 This has been stressed
by the European Court of Justice (ECJ) on many occasions.14 From the legal point of view, such a permanent
derogation negatively affecting workers from just one of the – by then probably some 30 - Member States does
not seem acceptable. Although it must be added that the ECJ would probably not have jurisdiction to rule on the
11
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, Annex VI and VII, OJ 2005, L 147. Hence, the
transitional period for these two countries runs from 1 January 2007 until 1 January 2014. For Poland, Hungary, the Czech
Republic, Slovakia, Slovenia, Estonia, Latvia and Lithuania it runs from 1 May 2004 until 1 May 2011.
12
Eastern European nationals legally working in a present Member State at the date of accession and admitted to the labour
market of that Member State for an uninterrupted period of 12 months or longer will enjoy access to the labour market of that
Member State but not to the labour market of other Member States applying national measures.
13
See Article 14(2) of the EC Treaty: “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 this Treaty” (emphasis
added).
14
See, e.g., Case 139/85, Kempf [ECR] 1986, p. 1741, par. 13: “The Court has consistently held that freedom of movement
for workers forms one of the foundations of the Community, 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” (emphases added).
3
compatibility of the derogation for Turkish workers with the internal market provisions, given the fact that any
permanent derogation would be laid down in the accession treaty which would have the status of primary
Community/Union law.15
Finally it must be noted that free movement of Turkish workers is not entirely dependent on the forthcoming EUTurkey negotiations: at present, under the current Ankara Association Regime and more specifically under
Decision No. 1/80 of the EU-Turkey Association Council, Turkish workers 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.16 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.
3.2. 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 authorisation requirements also
continue to be incompatible with the acquis in this specific area (i.e., notably, the Services Directive).17 Firms
already established in a Member State are still subject to specific registration and authorisation requirements in
Turkey. The same applies to service providers, who have to fulfil particular requirements in Turkey in order to
obtain the necessary work and residence permits. Work to identify obstacles to exercising the right of
establishment and freedom to provide services has not yet started.
On the other hand, the Commission reports some progress in the area of mutual recognition of professional
qualifications. A regulation on harmonisation of the minimum training requirements for regulated professions
(medicine, nursery, midwifery, dentistry, veterinary medicine, pharmacy and architecture) was adopted and
published with the aim of aligning with Directive 2005/36. 18 The Turkish Vocational Qualifications Authority (VQA)
has taken further steps towards becoming operational, including recruitment of staff and adoption of several
regulations on staff and working methods.
However, the principle of reciprocal recognition is “still applied” to a number of regulated professions whereas
automatic recognition is the general rule under the acquis.19 One may wonder whether the Commission is not
asking too much from Turkey on this point: essentially the country is requested, prior to its accession, to
automatically recognize EU qualifications regardless of whether the existing EU member states recognize Turkish
15
Under Article 230 EC and Article 35 EU (actions for annulment) the Court only has jurisdiction to rule on the validity of
secondary Community/Union law, i.e. the binding decisions of the EU institutions (such as regulations, directives and third
pillar framework decisions).
16
For an overview, see e.g. N. Rogers, ‘Turkish Association Agreement Applications – A Myriad of Problems and Some
Solutions’, Journal of Immigration Asylum and Nationality Law, 2006, p. 158.
17
Directive 2006/123/EC of 12 December 2006 on services in the internal market, OJ 2006, L 376, p. 36.
18
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, p. 22–142.
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”.
19
4
qualifications for the same profession. Thus, e.g., the Dutch diploma of a Dutch dentist would have to be
recognized by Turkey even if the Turkish diploma of a Turkish dentist is not recognized by the Netherlands.
Turkey also still needs to designate a contact point as part of implementation of Directive 2005/36.
The Commission’s overall conclusion is that limited progress can be reported on the right of establishment and
freedom to provide services. Alignment in these areas is still at an early stage. The legal groundwork in the field
of postal services still needs to be launched. Alignment with Community law on the mutual recognition of
professional qualifications is progressing slowly but at a steady pace.
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 non-financial 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 in the fields of banking (Directive on capital requirements for investment firms), 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 2006.
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 EC Treaty. Romania
had a legal framework in place which allowed the provision of services in a temporary manner by EU nationals
without the need to obtain further licences. 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 2008 PR) 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. This led to an increase of migration of self-employed
persons from Eastern Europe into the existing Member States, given the fact that the free movement of workers
was - and still is - not (entirely) liberalised. Nationals from Poland, Hungary etc. 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 reasonable possibility that the EU-Turkey accession agreement will
also not contain transitional rules for the freedom of establishment. It would then be of the utmost importance
for Turkish nationals to conduct as much economic activities as possible in a self-employed capacity and not as a
workers.
In this respect it must be noted that already under the current Ankara Association Regime, Turkish self-employed
persons enjoy 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”. In the famous Tum and Dari judgment, 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 also covers the first admission of Turkish
20
See, e.g., 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.
5
nationals, so that they have a (Community 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 1973.21 Despite
this 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).
3.3
Public Procurement (Chapter 5)
This subject is indicated in the 2008 PR 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 Community acquis for procurement.
All EC member states are also signatories to the WTO Government Procurement Agreement (GPA). Romania and
Bulgaria acceded to that agreement in 2007, 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 leading
developing countries are also in this same observer status, Australia, Chile, and China for examples.
As for transitional arrangements made on behalf of Bulgaria and Romania, there are no such exceptions,
derogations or transitions set out 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 EC 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 EC member markets for tenders without a full measure of reciprocity
on Turkey’s part. Procurement is a large area where extensive industrial policy and protectionism is practiced in
even 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 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.
3.4
Competition policy, including state aids (Chapter 8)
Turkey has long had a functioning and active competition authority that is substantially aligned with EC
competition law. The Turkish law handles anti-competitive practices and mergers. Currently not included in the
law is a state aid regime and regimes for handling public undertakings and firms granted special and exclusive
rights. In this regard the 2008 PR points out:
Case C-16/05, Tum and Dari, judgment of 20 September 2007. See, in particular, the Court’s dictum: “Article 41(1) of the
Additional Protocol […] is to be interpreted as prohibiting the introduction, as from the entry into force of that protocol with
regard to the Member State concerned, of any new restrictions on the exercise of freedom of establishment, including those
relating to the substantive and/or procedural conditions governing the first admission into the territory of that State, of
Turkish nationals intending to establish themselves in business there on their own account” (emphases added). In the
Netherlands, the Ministry of Justice is now conducting extensive research on the rules on immigration of self-employed
Turkish nationals that were in force on 1 January 1973.
21
6
“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”22
The report does note some progress in the steel sector.
Turkey is subject to the WTO Subsidies Agreement which prohibits export subsidies and renders actionable
certain other trade distorting subsidies either operating in Turkey or on third markets.
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 do not list any outstanding state aids allowed to be subject to derogations, or
other special aid arrangements for regions or sectors.
The 2006 report for Romania is more mixed, indicating progress made on state aids but not completed in
alignment with EC standards. From the September 2006 MR report:
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. 23
The transition annex for Romania also carries some of these issues forward. Aid was permitted in the two forms
of corporate tax exemptions for undertakings in 28 listed ‘Deprived Areas’ and for certain royalty exemptions in
free-trade zones. These are permitted in the form of regional aid subject to a number of percentage caps, eligible
costs definitions, computation periods and reporting conditions.24 Romania was required to establish that the
conditions were operating within two months after accession and required to report on them every six months.
The transition annex does not indicate that these aids are required to be discontinued on any set date, but there
are major disclosure points set for the schemes three to four years after accession.
Steel restructuring is 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 allows for restructuring aid in designated sums with accompanying production cuts to
designated companies through 2008. This reflects the completion of the restructuring program as agreed with the
Commission by 2009. Monitoring extends through 2009 for the restructuring program.
Assessment - State aid control is an advanced Community acquis area but with the reporting caps as set in the
Community regulations, there is some flexibility for member states in the overall regime. The control and
reporting mechanisms, the transparency aspects, all have to be established in every member state in order to
22. 2008 PR, p. 47.
23
MEMO/06/346, Key Findings report, 09/2006.
24
Annex VII, L 157/143.
7
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 its 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 needs to commence its state aid process. Since the recipient
firms will be addressing both a change in aid and a change in procurement practices at the same time, the sooner
Turkey moves to commence that process, the more time its firms will actually have to adjust to the new regimes
prior to completion of a negotiated accession treaty. In terms of dislocation effects on firms and employment,
there could be a large difference between an adjustment period of five years as compared to ten years.
It seems that Turkey itself is convinced that its state aid process must be commenced: in the 2008 National
Programme, it indicates that a working group has been established with the participation of the related public
institutions and organizations and whereby the fragmented picture of state aid aims to be eliminated. A system
similar to the Nomenclature of Territorial Units for Statistics (NUTS), forming the basis of the regional statistical
classification of the state aids system of the EU, needs to be established in Turkey. Furthermore, it is said that
there also is the need to establish a Monitoring and Supervision Authority for State Aid to assess the conformity of
state aid applications with the criteria laid down by the EU acquis.
3.5
Food Safety, Veterinary and Phytosanitary Controls (Chapter 12)
This is a large and complex basket of acquis that ranges from veterinary policies, testing and marketing of food
and feed, phytosanitary controls, animal welfare and zootechnical issues. The 2008 report indicates that there is a
limited process of translating and implementing the Community acquis, but it also notes progress in a number of
areas.
Turkey is subject to the WTO Agreement dealing with Sanitary and Phytosanitary measures and the Technical
Barriers to Trade Agreement. These provide that measures when taken should not be more trade restrictive than
necessary, and that a Member should (or shall) use international standards when they are available.
For the 2007 accession countries, there were transition provisions for this chapter. For Bulgaria the section is
entirely dedicated to the processing and distribution of milk which cannot comply with the Community
regulations, and mainly insuring that this product does not enter free circulation. This derogation is permitted
until the end of 2009.
Romania received derogations for meat and milk processing that remains on the domestic market. This is a
gradual control regime that required the submission of a plan and then compliance by the end of 2009. There
was a further derogation for plant-protection products that also is granted to the end of 2009.
Assessment - 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 were limited in time, in no case exceeding two years following accession.
3.6
Social Policy and Employment (Chapter 19)
In the area of labour law, shortcomings in the transposition of a number of directives remain. These include the
limited scope of application of Turkish labour law; existing legislation does not cover all workers in the private
sector and excludes workers in the public sector.25 Child labour, including children working on the streets,
25
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, 29.6.1989, p. 1-8, as amended) Article 1 of this socalled Framework Directive states that “this Directive shall apply to all sectors of activity, both public and private
(industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.)”.
8
remains a problem. Administrative capacity of the Ministry of Labour and Social Security is not yet sufficiently
developed, although the Labour Inspection Board started harmonising its inspection practices and has further
improved its capacity.
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 Labour 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 the Tuzla shipyards. Further efforts
to implement the legislation are needed including through awareness-raising, training and strengthening the
capacity of the inspection bodies.
Regarding the social dialogue, there has been limited progress. Tripartite social dialogue meetings were more
frequent; there has also been some progress regarding bipartite social dialogue in certain sectors. However,
establishing autonomous and bipartite social dialogue structures at all levels is still outstanding. Full trade union
rights have not yet been established in Turkey. The draft legislation aimed at bringing the currently applicable
Trade Union and Collective Bargaining, Strike and Lockout Laws into line with ILO and EU standards is still
pending.
There has been progress in the area of employment policy. The Turkish labour market is characterised by low
labour force participation (47.8% in 2007) and low employment rates, in particular for women (22.2% in 2007),
and high levels of youth unemployment (19.6% in 2007). The large size of the informal economy and the marked
rural/urban divide in the labour market remain the main challenges. In response to this, an Employment Package
was adopted in May 2008 aiming to address unemployment challenges, with a specific focus on the promotion of
job opportunities for women, young people and people with disabilities. Unemployed persons registered with the
Turkish Employment Agency (IŞKUR) will benefit from job matching, guidance and vocational training. 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 2008. It provides general health insurance
coverage for everyone under 18 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
decentralised one-stop services for disadvantaged people.
As regards anti-discrimination and equal opportunities, the Commission points out that women’s 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. 26 An effective and independent "Equality Body"
still needs to be established to promote non-discrimination and equal treatment.
Overall, Turkey has made some progress in the field of social policy and employment through the adoption of the
Employment Package and the Law on Social Insurance and General Health Insurance. However, ensuring full
trade union rights and combating undeclared work require particular attention. Further efforts are also needed in
26
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)).
9
order to combat child labour. Gender equality in economic and social life as well as policies to support social
inclusion should be improved. In general, there is a need to increase administrative capacity for the effective
implementation of the acquis.
In the case of Bulgaria we can see similar problems in this area, even just before its accession in 2007. Legal
alignment needed to be completed and enforced in the areas of labour 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, deinstitutionalisation, child welfare and integration of vulnerable groups into the labour 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.
Romania faced similar problems in 2006. The Commission stated that legal alignment still needed to be
completed swiftly in the areas of labour 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 situation
of vulnerable groups, such as the Roma, and 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.27
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 which may be implemented by the Member States (so-called
optional harmonization ) and that Member States encountering specific problems have been given longer
implementation periods. Apart from these 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.
Whether or not this turns out to be a major problem for Turkey remains to be seen; in 2008 the country promised
to remedy most of the shortcoming 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 labour; and it is considered very important to
enact the Draft Law on the Work Permits of Foreigners.28 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.
3.7
Environmental Protection (Chapter 27)
This is a 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 priority social requirements.
The 2008 PR documents 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. Turkey has not yet signed the Kyoto Protocol and is not a
The only exception is Bulgaria’s accession treaty which mentions (in its Annex VII) a temporary derogation from the socalled 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.
28
Cf. section 3.1, on the free movement of workers.
27
10
party to the Espoo and Aarhus Conventions. The Emissions Trading Directive has not been transposed. A
greenhouse gas emission trading scheme has not yet been established. Transposition of the Strategic
Environmental Assessment (SEA) Directive is at an early stage. 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 with on its participation in the Community
civil protection financial instrument.
On the other hand, 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 sulphur content of liquid fuels
in domestic heating systems. The administrative capacity for regional air quality has been improved by
establishing a clean air centre in Marmara. However, no progress has been made on legislation related to the
acquis on emissions of volatile organic compounds, on the sulphur content of certain liquid fuels or on national
emission ceilings.
Some progress can be reported on alignment with the waste management acquis (PCB’s, waste oils etc.),
although a national waste management plan is still lacking. There has been little progress in the area of water
quality, but the overall level of alignment remains
low. The institutional framework for water management is not organised on a river basin
basis. Trans-boundary consultations on water issues are at an early stage.
For the subject of nature protection, Turkey has aligned with the acquis regarding establishment and
management of zoos but the level of harmonisation and implementation remains very low. The continuing loss of
habitats is a cause for concern. The list of potential Natura 2000 sites has not yet been compiled. A framework
law on nature protection and implementing legislation on birds and habitats have not yet been adopted. A
national biodiversity strategy and action plan have been prepared, but not yet adopted by the government.
Furthermore, no progress can be reported regarding industrial pollution control and risk management. Turkey has
aligned with some provisions of the Seveso II Directive and with the Large Combustion Plants and Waste
Incineration Directives. However, overall transposition and implementation remain very low. Introduction of an
integrated permit system is at an early stage.
There has been limited progress in the field of chemicals where the overall level of transposition remains low. The
capacity for effective implementation is insufficient. No progress can be reported on genetically modified
organisms (GMO’s).
Following adoption of the implementing legislation on noise, Turkey is however approaching full alignment with
the acquis in this area; preparation of noise maps and action plans is however still at an early stage.
As for administrative capacity, a substantial number of staff was recruited and trained by the Ministry of
Environment and Forestry (MoEF) but no progress has been made on establishment of a national environment
agency. Responsibilities, such as inspection activities and nature protection, are not clearly defined.
Administrative capacity needs further strengthening, including coordination between the relevant authorities at all
levels. Mainstreaming of environmental protection into other policy areas and ensuring that new investments
comply with the environmental acquis are at an early stage. Some of the existing legislation, such as the Mining
Law, which includes gold mining, and the tourism legislation, are causing major damage to natural areas.
The Commission concludes that Turkey has made progress in the area of air quality and good progress on
strengthening the administrative capacity at central level. Some progress can be reported on waste, water and
nature protection. However, the overall level of alignment remains low. Turkey has made no progress in the areas
of industrial pollution and risk management and GMOs. Limited progress can be reported on chemicals. Delays in
establishment of the EIA are hampering further improvements in implementation and enforcement.
For Bulgaria and Romania the areas of environment and waste management were major subjects for derogations
and transitions. This two lists are long – 10 pages of the Official Journal for Bulgaria and 31 pages for Romania –
and they mention (derogations and transitions from) the directives on air quality, waste management, water
quality, and 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.
11
Assessment – It is clear that the Environmental Chapter poses serious problems for Turkey; estimates run up to
60 billion euro 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 EC
directives on environmental protection, and in particular the extremely complex and technical annexes to these
directives, 2) to conduct extensive environmental research in the country (emissions, storage capacities, water
quality of the Sea of Marmara, compose a list of most polluting installations, etc.), so that well in advance, the
country is prepared when it comes to negotiating derogations from the environmental acquis.
4.
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
more 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 organised 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 Commission continues to publish progress reports. 29
In most cases these extensions are being seen 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.
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 an open regime for certain types of regional aid granted by specific instruments. Another area of
note is environment and waste management. Here compliance programmes are also required but the period of
compliance appears to recognize the expense involved in harmonization.
For a balanced approach, 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 is an attempt to
assume all obligations of EU membership, including the obligations in the economic sphere, and not so much
trying to obtain temporary and/or permanent opt-outs.
We think this is the right approach. We understand that Turkey’s campaign for membership is always riddled with
questions regarding the Community’s commitment to admit Turkey in the final analysis. These doubts over
Turkey’s ultimate prospects stand as barriers to formulating alignment to Community law, especially considering
the complexity and expense of this alignment process for Turkey. 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 that it would prefer to travel with or without the
concept of European integration in the mix of the policy priorities.
One approach that has become evident while reviewing a number of these chapters is to consider realistically
how long it will take to match alignment with the acquis sufficiently to form an accession treaty on a basis
comparable with the 2007 acceded countries. This assessment should also consider an appreciation for the
developing pace of harmonization committed by Turkey in a number of these areas. For all of these regimes, we
then can ask but cannot answer: ‘is five - or ten - or fifteen years enough time for Turkey to reasonably complete
the mission on this Community acquis?’
We think that the answer to that question should govern the reasonable expectations of both Turkey and the
Community in the preparation for accession.
29 See, e.g., the two Interim Reports from the Commission to the European Parliament and the Council, On Progress in
Bulgaria/Romania under the Co-operation and Verification Mechanism, Brussels, 12.2.2009, COM(2009) 69 and
COM(2009) 70, final Brussels, 12.2.2009.
12