EU-Turkey Association Law and its Status in the EU Legal Order

Since its beginning, the European Economic Community (EEC) has been given the power, transferred to the European Union (EU) as of December 1, 2009, to conclude a particular category of agreements: those which create an association with one or more Third Countries or international organizations. These agreements have been designed to allow the Community, and now the Union, to establish consistent forms of cooperation (Mannai, 1995; Hanf and Dengler, 2004, 3–44; Aloupi et al., 2019). As will be seen in the next pages, for about sixty years Turkey is among the main protagonists of this cooperation. This chapter indeed aims at investigating the legal status acquired and enjoyed within the EU legal system by the so–called EU–Turkey Association Law based, in particular, on the Ankara Agreement of 1963, four Additional Protocols signed in 1970, 1973, 1977 and 2005, and a considerable number of secondary legislation issued over time by the EU–Turkey Association Council. According to Article 238 of the EEC Treaty in the past (then Article 310 of the EC Treaty), and Article 217 of the Treaty on the Functioning of the European Union (TFEU) currently, association agreements involve reciprocal rights and obligations, common actions and special procedures. This is a fairly broad and general definition, so as to allow institutions to negotiate agreements with the most different attributes. As the Court of Justice of the European Union (CJEU) has specified, association agreements can in fact cover all the matters governed by the Treaties (Demirel v Stadt Schwäbisch Gmünd, para. 9). Relations between the EU and the Associated States are therefore very intense and span a wide range of subjects. First of all, they have been used to prepare for the accession of new Member States to the Communities and the EU. Stabilization and Association Agreements, which fall within the framework of the action for the stabilization process of the Balkan Countries after the dissolution of former Yugoslavia, follow the same pattern. Association agreements have also been used to develop interregional cooperation. The CJEU has pointed out that the notion of “reciprocal obligations” does not necessarily ensure equality in the obligations which the EU assumes with regard to the Associated States, but entails that any imbalances may result from the aim pursued by the association agreement, namely the creation of solidarity bonds in order to promote the development of the Associated States themselves (Conceria Daniele Bresciani v Amministrazione italiana delle Finanze, para. 22). In addition to the reciprocity of rights and obligations (which moreover is shared with international agreements in general), association also includes, as already said, “common actions” and “special procedures”. Association is therefore marked by close forms of cooperation, an institutional structure and decision–making procedures aimed at administering and executing the agreement (Lipstein, 1975, 201–26). Bearing in mind this background, after a short examination of the structure, contents and purposes of the Ankara Agreement and Protocols, their character of “mixed” agreements will particularly be stressed, taking into account, in this regard, the differences they have with respect to other international agreements signed by the EC and the EU with Third States. Another part of the chapter concerns the direct effects of EU–Turkey Association Law. The case–law issued on the matter by the CJEU is particularly useful for such investigation, even if it is not without contradiction.