Soysal judgment

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The Soysal judgment (case C-228/06) is a decision of the European Court of Justice (ECJ) of February 19, 2009 in a preliminary ruling on the visa requirement for Turkish truck drivers in Germany.

Subject of dispute

The background to this is a lawsuit brought by Mehmet Soysal and İbrahim Savatlı, who are active in cross-border road haulage , against the Federal Republic of Germany because of the statutory visa requirement for Turkish citizens . The plaintiffs had applied for visas several times in the past until the German consulate general in Istanbul rejected their visa applications submitted in 2001 and 2002. The plaintiffs initially filed a declaratory action against the Administrative Court in Berlin . They applied for the administrative court to decide that, as long-distance drivers who provide services in cross-border freight transport, they are entitled to enter Germany without a visa. On July 3, 2002, their lawsuit was dismissed and they appealed to the Berlin-Brandenburg Higher Administrative Court . This referred the case to the European Court of Justice for a preliminary ruling under Article 234 of the Treaty establishing the European Community (EGV).

The plaintiffs in the administrative dispute relied on the Association Agreement between the European Economic Community and Turkey , which came into force in 1973. Article 12 of this agreement stipulates that the contracting parties should “ gradually establish the free movement of workers among themselves ”. Article 41 of the Additional Protocol states: “The contracting parties will not introduce any new restrictions on the freedom of establishment and the free movement of services between themselves .” At the time of entry into force, there was no visa requirement for citizens of Turkey who did not work in Germany for more than two months. Such a visa requirement was only introduced in 1980. Under European law, it was initially continued for the entire Schengen area by Regulation (EC) No. 539/2001 (EU Visa Regulation) , and later by Regulation (EU) 2018/1806 (EU Visa Regulation) .

Decision of the court

First, the court referred to its previous jurisprudence, according to which Article 41, Paragraph 1 of the Additional Protocol is sufficiently determined to grant individuals individual rights that they can also invoke. However, Article 41 of its own accord could neither give Turks a right to the free movement of services nor a right to enter the territory of a Member State of the Union. However, the provision prohibits the introduction of a work permit for the provision of services by a company based in Turkey and its employees who are Turkish nationals as a standstill clause when the protocol comes into force for requirements that do not exist in a member state. So far, the court has based itself on considerations that it had already made in previous decisions (including decisions by Abdülnasir Savaş from 2000, Abatay from 2003, Tüm and Dari from 2007).

The ECJ also stated that this result is not called into question by the fact that the regulation applicable in Germany is merely the implementation of a provision of secondary Community law, namely Regulation (EC) No. 539/2001. The international treaties concluded by the Community would take precedence over legal acts of secondary Community law . As secondary Community law, the regulation must therefore be interpreted in the light of the international treaty. However, from the date of entry into force of this Protocol, the Convention prohibits the requirement of a visa for entry into the territory of a Member State by Turkish nationals who wish to provide services there for a company based in Turkey, if such a visa is not required at that time has been.

Consequences of the judgment

The ECJ ruling has raised the question of whether Turks are now allowed to enter Germany without a visa “for short-term use of the freedom to provide services ” (“passive freedom to provide services”, for example a museum visit or advice from a lawyer). The German interior ministry and the German embassy in Ankara have provisionally denied this. While the Administrative Court of Berlin (file number VG 19 V 61.08 25 February 2009 and file number VG 34 L 114.09 V of April 2009) still considered the visa requirement for family and tourist visits to be legal, the Higher Administrative Court Berlin-Brandenburg considers the question to be unresolved and has it submitted to the European Court of Justice for decision by decision of April 13, 2011 - OVG 12 B 46.09. On January 7, 2011, the Hanover District Court acquitted a Turkish tourist without a visa from “staying in Germany without permission” and justified this with the Soysal ruling

In the answer to a Bundestag question on the effects of the Soysal decision, the Federal Government declares that the “Community law concept of passive freedom to provide services, which is coined against the background of the internal market within the Community, cannot, in the opinion of the Federal Government, be transferred directly to the context of association law”. While in case groups of "cross-border active provision of services" by Turkish nationals the form of visa exemption is still being examined, "the 'Soysal' judgment does not give Turkish nationals the right to visa-free entry to Germany for the purpose of receiving services (so-called passive freedom to provide services) , for example as a tourist or when visiting relatives ”. The German embassy in Turkey has specified in a leaflet in which cases it is possible to enter the country without a visa, and recommends that "at least five working days before departure", "on a voluntary basis, have a visa-free certificate issued".

One of the consequences of the ruling is that the Federal Police temporarily blocked its employees from having internet access to the Westphal / Stoppa online commentary on foreigners law because a more liberal interpretation of the Soysal decision was published there. In addition, the lawyer who had represented Soysal initiated an investigation against the Federal Minister of the Interior for persecuting innocent people , which was discontinued on April 7, 2009. The effects of the Soysal decision also affect other Member States that did not require a visa for Turkish nationals on January 1, 1973 or at the time of their accession to the EC (Netherlands, Belgium, France, Italy, Luxembourg, Portugal and Spain).

Web links

Individual evidence

  1. ↑ Abdülnasir Savaş ECJ judgment of May 11, 2000 - C-37/98
  2. ↑ Abatay ECJ judgment of October 21, 2003 - C-317/01
  3. ↑ Tüm and Dari ECJ judgment of September 20, 2007 - C-16/05
  4. ↑ Ansgar Graw: Will the visa requirement fall in Germany? Die Welt , April 24, 2009
  5. ↑ On the effects of the so-called “Soysal judgment”, German Ambassador Dr. Cuntz in Ankara
  6. ↑ Dienelt: Court decides: No visa-free entry for Turkish citizens during visits (on Az. 19 V 61.08) migrationsrecht.net, March 26, 2009
  7. ↑ Dienelt: No declaratory visa for Turkish nationals to receive services (on Az.VG 34 L 114.09 V) migrationsrecht.net, April 20, 2009
  8. ↑ gerichtentscheidungen.berlin-brandenburg.de
  9. ^ AG Hannover acquittal for Turks without a visa
  10. ↑ migrationsrecht.net 286 Os 7911 Js 100048/10 (123/10)
  11. ↑ Short question from the DIE LINKE parliamentary group on the effects of the Soysal judgment (PDF; 114 kB) of April 3, 2009 (Bundestag printed paper 16/12562); Answer from the Federal Government (PDF; 117 kB)
  12. ↑ Leaflet on the possibility of visa-free entry for Turkish citizens to provide a service in Germany (PDF)
  13. ↑ Attack on freedom of information and expression - Federal Police Headquarters blocks Westphal / Stoppa website .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF) BDK press release on March 9, 2009@1@ 2Template: Dead Link / www.bdk.de  
  14. ↑ Dienelt: The fear of the truth about the visa exemption for Turks: BMI lifts censorship . (PDF) migrationsrecht.net, March 9, 2009
  15. ↑ Volker Westphal, Edgar Stoppa : ECJ: Visa exemption for Turkish nationals Immigration law for the police. March 28, 2009
  16. ↑ Investigation proceedings (74 Js 108/09) for persecution of innocent people ( Section 344 of the Criminal Code ) (“illegal entry” despite visa-free entry according to the Soysal decision?); Dienelt: set investigation against Interior Minister because of persecution of the innocent . migrationsrecht.net, April 27, 2009
  17. ↑ Kees Groenendijk: Comment on the ECJ judgment of February 19, 2009, C-228/06 (Soysal). (PDF; 105 kB) In: Jurisprudentie Vreemdelingenrecht , 2009, No. 144