Suchergebnisse

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:

As mentioned in the previous note1 the Amsterdam Treaty significantly alters the treaty structure as regards the free movement of persons. The EC treaty now has, as one of its formal activities as set out in article 3(1)(d), "measures concerning the entry and movement of persons as provided for in Title IV". The creation of a new Title IV in the EC Treaty on establishing an area of freedom, security and justice moves a corpus of subject matter2 from the inter-governmental pillar on Justice and Home Affairs to the Treaty of Rome. The aim clearly set out is to establish, within five years, all the measures necessary to create "an area without frontiers" in accordance with Article 143 together with "flanking measures with respect to external board of controls of asylum and immigration" as well as "measures to prevent and combat crime in accordance with the provisions of Article 31 (e) of the Treaty on European Union".4 Co-operation between the Member States is also to be strengthened and encouraged5 as well as measures in the field of police and judicial co-operation in criminal matters though the latter is in accordance with the provisions of the Treaty on the European Union.6

The Surveys of the law of the free movement of goods carried in the Quarterly since 1989 have followed a largely consistent pattern. The Court's case law interpreting the nature and purpose of Article 28's legislative institutions. The readier the Court is to treat national measures as barriers to trade, the deeper the incursion of EC law into national regulatory autonomy. And vice versa. The Wider the scope allowed to the possibility to justify barriers to trade, the more room for manoeuvre is handed back to national regulatory autonomy—and the more weight is placed on the process of legislative harmonization or, increasingly, other forms of policy coordination at EC level as the way to advance integration. And vice versa. All these trends are in view in the period covered by this survey. The complex institutional rhythms reveal that the creation of the internal market was not a short-term project that was completed in 1992, nor even an enterprise that gently begged to have a few loose ends tidied up before being triumphantly pronounced historical fact. In reality the internal market, as an exercise in creating a unified economic space underpinned by a constitutionalized system of supra-State legal rules in a politically fragmented but interdependent environment, is one manifestation of the extraordinary exercise in multi-level governance which is evolving in Europe. Systems of this complexity do not stop fluctuating; 'free' markets are politically contested.

The Commission has spent time in 2003 celebrating the tenth anniversary of the establishment of the internal market. In this context the use of deadlines is misleading. The building of an internal market is more process than event. Many significant pieces of legislation entered into force at the end of 1992, but many pre-dated that moment and others again havebeen agreed subsequently. And the Court's interpretation of relevant provisions of the Treaty was not fossilised at the end 1992, but rather its dynamic evolution continues to exert influence over the process of market-building. The Commissionsperfectly well aware of this. It admits that the Internal Market will never be 'completed'.1The core mission is to promote and sustain improved economic performance, not to hit crude targets. Nonetheless dissemination of propaganda possessesbase appeal in all political systems and the Commission has taken the trouble to emphasise the gainsthat have accrued from the process of integration, while also devoting attention both to remaining gaps and strategies forplugging them. In making its case the Commission is confronted by the unavoidable absence of reliable data on what would have occurred had the internal market not been pursued in the chosen manner. Sector by sector, it is difficult to demarcateadvantages accruing from the '1992' initiative from those that would have occurred in any event or which are attributable to other factors such as global trade liberalisation. Moreover, the essence of the internal market programme is that benefits will be felt not only in the short term, but also in the long term, and accordingly, in line with Chairman Mao's reported refusal to assess the importance of the French Revolution on the basis that it was too soon to tell, measurement of the impact of the internal market project cannot yet be decisive. However, in its reportThe Internal Market—Ten Years without Frontiers the Commission insistedon demonstrably favourable macroeconomic consequences.2It highlighted price reductions and improved productivity. Its simulation results suggest that real Gross Domestic Product would have been 1.4 per cent lower in 2002 without the internal market programme. The level of employment would have been 0.86 per cent lower. Moreover further gains are expected of the former, though not the latter, type in future.