The end of 2012 will herald the twentieth anniversary of 'deadline 1992', the projected date for the completion of the EU's internal market. Since the entry into force of the Lisbon Treaty in 2009 references to '1992' have been deleted from the Treaties, and so it may be tempting to suppose, rather more than twenty years since the first contribution on the Free Movement of Goods to this section of the Quarterly,1 that this is old news. Isn't the law governing the internal market in general and the free movement of goods in particular now well settled?
The informal politics of distribution on the streets, of begging and of giving, makes visible the faults inherent in European welfare systems, writes Cecilia Parsberg. And the rules and statutes that aim to prevent poverty-stricken EU citizens from enjoying free movement add insult to injury. ; First published in Glänta 1/2014 (Swedish version), med titeln "Giveriet i den fria rörlighetens Europa". ; How Do You become a Successful Beggar in Sweden?
The informal politics of distribution on the streets, of begging and of giving, makes visible the faults inherent in European welfare systems, writes Cecilia Parsberg. And the rules and statutes that aim to prevent poverty-stricken EU citizens from enjoying free movement add insult to injury. ; First published in Glänta 1/2014 (Swedish version), med titeln "Giveriet i den fria rörlighetens Europa". ; How Do You become a Successful Beggar in Sweden?
Since the expiry of the deadline for the completion of the internal market at the end of 1992, the Commission has shifted its focus away from piloting an intense rule-making burst through the Community legislative system. As part of its quest to establish reliable methods for managing the internal market, the Commission is now overtly concerned to improve the quality of those adopted laws, for example by securing simplification and consolidation, and it is intent on investigating more rigorously how a closer match may be made between the relevant laws on paper and their practical application on the ground.1 In short, the Commission is focusing its energies on ensuring that the legal framework which has been adopted is treated by commercial operators and consumers in the market as a viable and trustworthy basis for an integrated market. Accordingly much of the Commission's work since the last survey of the law relating to the free movement of goods has been at first sight relatively unglamorous. It largely concerns soft law initiatives and attempts to improve administrative co-ordination designed to underpin the practice of market management, both vertically (Commission/Member State) and horizontally (Member State/Member State). This forms the core of the strategy for the internal market covering the next five years, published on 24 November 1999.2 Nonetheless, even though these initiatives might not immediately strike the lawyer accustomed to a fountain of legislative activity as worthy of close inspection, it is clearly the case that the Commission regards its medium-term mission to stabilise the management of the internal market as best pursued by a gradual approach designed to improve practical compliance.
There is a generalised perception that the European Court of Justice has adopted different approaches to the different free movement rules included in the Treaties. In particular, the free movement of goods has 'benefited', until 1993, from a wider scope of application. Contrary to what has for long constituted the standard approach to the free movement of persons, the free movement of goods was constructed as requiring more than national treatment and non-discrimination in regard to goods from other Member States. Even non-discriminatory restrictions on trade in goods could constitute a violation of Community rules if not justified as necessary and proportional to the pursuit of a legitimate public interest. The freedom to provide services has somewhat occupied a middle ground between the interpretation given to the goods and persons provisions. Following the Court's decision in Keck & Mithouard in 1993, a reversal of fortune appears to have taken place regarding the Court's approach to the different free movement provisions, with the free movement of persons and the freedom to provide services now benefiting from a more 'aggressive' interpretation in comparison with the free movement of goods.
Bu çalışmada "Kişilerin Serbest Dolaşımı" kavramının Avrupa Birliği hukukuna göre ne anlama geldiği ve bu yasal sürecin Türk vatandaşları açısında doğurduğu sonuçlar ortaya konulmaya çalışılmıştır.Tezin ilk bölümünde Avrupa Birligi Hukukunda kişilerin serbest dolaşımı hakkını ortaya çıkaran temel hukuki belgelere ve bu hakkın pratik uygulanması esnasında ortaya çıkan bazı sorunlara ve bu sorunlara Avrupa Toplulukları Adalet Divanının uygun bulduğu çözümlere yer verilmiştir.İkinci bölümde ise Türkiye ve Avrupa Birligi arasında akdedilen ve hükümleri itibarı ile kişilerin serbest dolaşımı sonucu doğurması muhtemel olan Ankara Antlaşması ve Katma Protokol incelenmiş, özellikle Avrupa Birliği ülkelerinde halihazırda yasal olarak çalışmakta bulunan vatandaşlarımızın haklarının iyileştirilmesine yönelik Ankara Antlaşması uyarınca kurulan Ortaklık Konseyinin aldığı kararlar üzerinde durulmuş ve bu kararlar temel alınarak Türk vatandaşları tarafından Avrupa Toplulukları Adalet Divanınca karara bağlanmış davalara değinilmiştir.Tüm bu süreç genel olarak incelendiğinde Türkiye'nin Ankara Antlaşmasından ve Katma Protokolden kaynaklanan Türk vatandaşlarının serbest dolaşımı ile ilgili henüz gerçekleşmemiş hakları olsa da artık bu durumun iki taraf tarafından da göz ardı edildiği ve 1999 Helsinki Zirvesi sonuç bildirisi ile Türkiye'ye adaylık statüsü verilmesiyle birlikte ortaklık ilişkilerinin yeni bir boyut kazandığı, kişilerin serbest dolaşımı konusunda Avrupa Birliği'nin Türk vatandaşlarına tanıyacağı hakların artık Ankara Antlaşması ve Katma Protokol kaynaklı olmayacağı, adaylık sürecinde müzakere edilmek suretiyle ortaya çıkacağı anlaşılmış bulunmaktadır. This study will examine what "Free Movement of Workers" means within the European Union Law on one hand and what implications does this concept have on Turkish citizens on the other hand.The first part of this thesis will focus on the legal texts, which constitute the basis of this right and practical application by concentrating on the Cases and Conclusions of the European Court of Justice. In the second part the thesis is more about the situation of Turkish workers who pursues to exercise this right.The EC Treaty defines in Article 48 EC "freedom of movement for workers'' as entailing the abolition of any direct or indirect discrimination based on nationality in the case of access to employment, remuneration and other conditions of work and employment. Article 48 provides that:1)"Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the least.Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment."The application of "free movement right" is based on Regulation (EEC) No 1612/68, which states in its preamble that "mobility of labor within the Community must be one of the means by which the worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement."Second part of the thesis deals with the implications of this right on Turkish Citizens. For the Turkish Citizens, the main legal basis of the freedom for the movement of workers is the Article 12 of the Ankara Treaty.Article 12 states that: "The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them". Moreover Article 36 of the Additional Protocol states that "Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after the entry into force of that Agreement. The Council of Association shall decide on the rules necessary to that end". This study will further examine the practical application of these principles laid down by the Decisions of the Associaiton Council established by the Additional Protocol by concentrating of the Cases relating to Turkish Citizens. Last parts of the thesis focus on the recent and future situation in this respect.
1. From "Sunday trading" to Keck and MithouardThese Current Developments surveys have consistently been driven to consideration of the Court's attempts to fix the outer limits of Article 30 of the EC Treaty, beyond which national authorities remain exclusively competent to regulate their markets without fear of legal challenge based on Community rules governing the free movement of goods. The high-water mark of judicial interventionism came in the so-called "Sunday trading" cases where the United Kingdom was required to justify against standards recognised by Community law rules governing shop opening hours despite the fact that such rules, although inhibitive of commercial freedom, posed no demonstrable obstacle to the construction of an integrated marketing strategy for the whole territory of the Community.1 In Criminal Proceedings against Keck and Mithouard2 the Court sought to curtail the reach of Article 30. A French rule prohibiting resale at a loss was held unaffected by Article 30. The Court overruled previous decisions, probably including the pair dealing with Sunday trading, although the Court was not explicit. Its intention to refocus the law of the free movement of goods on measures hostile to market integration, rather than those merely oppressive of commercial freedom, was reflected in the formula:
