Similar rights, different interpretation

Under the EU treaties, ?the freedom to travel in order to provide services has long been regarded as including the freedom to travel in order to receive services.

That has been clear for nearly 30 years, since joined cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377. Although article 60 of the Treaty of Rome specifically referred only to the right of the provider of services to travel, the European Court of Justice held that the right of the recipient to travel was a 'necessary corollary'.

Expansive principle

This was a potentially expansive principle. For instance, it opened up the principle that any tourist or any other person who travelled with the intention ?and capability of purchasing valuable services must be ipso facto entitled to free movement rights as a service recipient.

In case C-221/11 Demirkan (Grand Chamber, 24 September 2013), the ECJ was asked to decide whether this line of reasoning should apply to a Turkish national under the Turkey-EEC Association Agreement. Article 41 of the Additional Protocol to that agreement provides that the parties will 'refrain from introducing. . . any new restrictions on . . . the freedom ?to provide services'.

Ms Demirkan, a Turkish national, was denied a visa to visit Germany to see her stepfather. She argued that the requirement to obtain a visa breached the standstill clause, because German law had not required Turkish nationals to have visas for family visits when the additional protocol had ?been adopted. She was, she said, intending to travel to Germany as a recipient of services, and could therefore claim the protection of the standstill clause.

But should the association agreement be interpreted in the same way as the EU Treaties? The ECJ held that it should not. There are previous cases where the court has refused to apply to an association agreement the full expansive rigour of its case law on the EU single market. Here, it said, the relevant agreement only said that it should be 'guided by' the approach taken to the EU treaties. And it decided that what is a 'necessary corollary' of the right to provide services in ?the context of the EU treaty was not required under the association agreement.

The ECJ's main justification for taking this stance was that the association agreement is essentially economic, and that the recipient of services was not exercising a sufficiently 'economic' activity to warrant protection by the standstill provisions of the association agreement. This seems questionable, for the internal market under the EEC Treaty was also conceived essentially as economic, and the right to receive services was always conceived as a right rooted in the exercise of economic functions.

Unconvincing reasoning

The ECJ's second justification was that the internal market was more extensive than the association established by the association agreement. That is no doubt true, but begs the question. True, the EEC Treaty went further than the association agreement, because the former conferred a right to travel, whereas the latter only conferred a right not to be subject to new restrictions. But why should ?the fact that the rights conferred are more limited make any difference to the interpretation of the factors that trigger ?those rights?

Finally, the ECJ argued that at the time the additional protocol was adopted it had not yet established the 'passive' side of the freedom to provide services. This suggests that a meaning should be regarded as ?having been fossilised in the association agreement, while being allowed to develop progressively under the EU treaties. It seems questionable indeed whether there should be any such difference.

Demirkan looks very much ?like a decision prudently motivated by a desire to maintain the status quo, under which it is understood that Turkish nationals who wish to travel to receive services in the EU (for instance as tourists) require visas in all cases. However wise that may be, the reasoning adopted to reach that conclusion is not very convincing. SJ