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TURKEY – EU ACCESSION NEGOTIATONS OPENING OF NEW CHAPTERS AND THEIR IMPLICATIONS

September 2010 - EU & Competition. Legal Developments by ADMD Law Office .

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On June 30th, 2010, a new chapter of the accession negotiations between the European Union and Turkey was opened, on the very last day of the Spanish presidency.

This new chapter, on Food safety, Veterinary and Phytosanitary Policy is expected to be a very challenging one. Indeed, in its 2006 screening report, the Commission found it would be very hard to adopt, as Turkish legislation was far away from being compatible with the Community acquis.

The purpose of this article is to understand the importance of this step forward in the negotiations between EU and Turkey, in the framework of the long lasting process of adhesion that Turkey is going through for more than forty years.

  1. Brief historical overview of Turkey's adhesion process to the EU
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    The history of Turkey's accession adventure to the European Union commenced a few months after the Rome Treaties, in 1959. The application was effectively implemented when the Ankara Agreement was signed at September 12, 1963, creating an association between EU (EEC at the time) and Turkey. This interim measure aimed at creating the conditions for the setting up of a customs union, through financial assistance, which would then lead to a full membership.

    In 1987, Turkey made a definite application for full membership, but the issues regarding the treatment of the minorities and the respect of Human Rights stood in the way of an easy adhesion process: it has been lasting longer for Turkey than for any other candidate country and the outcome of it is still unclear.

    In 1995 the Customs Union was implemented between Turkey and EU although there were some reservations and exemptions including agricultural products.

    During the following years, the EU published various reports on Turkey's progress for accession but nevertheless agreed to start the formal accession negotiations at December 2004.

    Consequently, six chapters of the acquis were opened for negotiations in 2005. However, the talks did not go on very smoothly and, as early as 2006, eight chapters of the negotiations were frozen because of the continued dispute over Cyprus, not to be reopened until a solution to the issue is reached. In addition, the EU Commission stated that: "The negotiations with Turkey are an open-ended process, the outcome of which cannot be guaranteed beforehand" in its communication to the Parliament and the Council about enlargement strategy for 2007-2008.

    As of July 2010, only one chapter is finalized among parties (chapter on science and research). Ten more remain frozen, and twelve more are opened and currently under negotiation. It is worth specifying that, even though some of these chapters are de facto completed, they cannot be closed de jure because of the aforementioned Cyprus issue.

  3. The rules of the adhesion process
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    The adhesion process to the EU is always a long-term objective for the countries, and formal candidate countries acquire this status after having been through a close partnership with the EU.

    The adhesion application is made to the Council, which, after a formal opinion of the Commission, decides whether or not to accept the application. Once the application is approved, the negotiations on the various chapters of the Community acquis can start. It is worth reminding that the Community acquis is composed of the body of community laws and acts adopter under the second and third pillar, that is to say, the set of rights and obligations that bind all the member states, not only the principles and objectives contained in the treaties but also all the secondary legislation. For the negotiation process, the acquis has been divided into thirty-five chapters.

    However, such negotiations will only be initiated if the candidate country meets the "Copenhagen Criteria", as defined by the 1993 Copenhagen Presidency Conclusions:

    "Membership requires that candidate country has achieved stability of institutions guaranteeing democracy, the rule of lawhuman rights, respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate's ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union."

    Nonetheless, as we mentioned before, in the case of Turkey, the negotiations started before all the Copenhagen criteria were met by Turkey, but cannot be closed until an agreement is reach on the minorities' issues.

    What is more, on top of having transposed all the acquis into its own legislation, the country must also equip itself with a set of administrative bodies able to efficiently implement these rules.

    Negotiations are conducted chapter by chapter, that are provisionally closed when all the member states are satisfied with the candidate country's progress. At the end of the process, the negotiations are definitively closed by the redaction of a Draft Accession Treaty. If the Council, the Commission and the Parliament approve the latter, it is then submitted for ratification to the candidate country and the member states, according to their own constitutional rules. Upon ratification by all these countries, the treaty enters into force and the candidate country becomes a member state.

  5. The screening report: a chapter "very hard to adopt"
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    Before the negotiations can start, the Commission undertakes a very detailed examination of each chapter for the candidate country, and publishes a report in which it expounds what in the national legislation and public bodies is compatible with the acquis and what is to be reformed. The report also advises the Council to open the negotiations and may recommend any prerequisite reforms in order for the chapter to be opened.

    In the case of Turkey's pre-adhesion negotiations, the screening meetings for Chapter 12 on food safety, veterinary and phytosanitary policy took place between March and April 2006.

    The Commission concluded its report by stating that:

    "The size of the country, the dominance of small holdings and small scale food processing establishments in remote areas, the animal health situation of Turkey and certain cultural and religious traditions pose key challenges to the enlargement process in the area of food safety, veterinary and phytosanitary policy"

    Indeed, it pointed out various elements in Turkish legislation that would not be compatible with the Community acquis in the framework of Chapter 12. As regards the veterinary policy, the Commission reckons that the traceability of animals is not sufficient and does not cover all the acquis of the Community, especially regarding the epizootic diseases. The Commission also regrets that, in the field of food safety, hygiene requirements do not meet European standards and most of the legislation is, either, based on outdated EU legislation or not EU compliant at all.

    On top of the legislative weakness of the legislation as compared with the Community acquis, is the fact that the Turkish administration lacks in means and in staff to be able to implement an effective control of the norms imposed by the EU. If it is not such a big issue yet, it will become more and more problematic in the future, as Turkey has to prepare in advance for the internal market. Indeed when the latter will enter into force upon accession, there will be no more control at internal borders but the controls will have to be strengthened at the place of origin and during the transport and the control at the external borders of EU will have to be reformed and tightened. At present, the Commission notes that most of Turkey's checkpoints at its borders are not EU compliant.

  7. Political and technical obstacles to the opening of the chapter
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    In spite of its claim to open at least four chapters of the accession negotiation with Turkey, Spain has only been able to open one. Indeed, in order to be able to do so, it has had to overcome the unwillingness of several states, and to ensure Turkey was in conformity with the prerequisite necessary to the opening of Chapter 12.

    First of all, three countries stood in the way of the opening of the chapter: Cyprus by threatening to oppose the opening of all other chapters if the European Parliament was to adopt the "direct trade regulation", France and Germany by trying to impose another opening criterion that was actually related to another chapter. However, Spain managed to overcome these obstacles and to open Chapter 12 on the very last day of its EU presidency.

    On top of some states' unwillingness to open a new chapter of accession negotiations, there were six technical criteria Turkey had to comply with before Chapter 12 could be opened:

    - Adoption of a food, feed and veterinary framework legislation which complies with EU acquis and makes provisions for a clear assignment f responsibilities, in particular for the controlling bodies;

    - Presentation to the Commission of a detailed strategy serving as a basis for transposition, implementation and enforcement of the EU acquis, including relevant international standards and World Organisation on Animal Health recommendations, for food safety, veterinary and phytosanitary policy. This strategy will include plans for the development of the relevant administrative and laboratory capacities and an estimation of financial resources required. It should also take into account the need to have the capacity to ensure cooperation with the EU in accordance with the acquis, in addressing risks in the animal health area;

    - Starting the implementation of an adequate system for identification and registration of caprine and ovine animals and demonstrates that appropriate measures have been taken to address the weaknesses of its animal identification and movement control system for bovine animals (related  to  the  registration of holdings, recording of animals and their movements);

    - Providing to the Commission a detailed assessment of the internal movements of live animals, its registration of movement and control of slaughtering;

    - Ensuring the Thrace Region that is recognized by the World Organisation on Animal Health as Foot and Mouth Disease (FMD) free zone with vaccination;

    - Presenting to the Commission a classification of all food establishments by category based on the EU acquis in a view of a future National Programme for the upgrading of food establishments.

    Further than the obstacles aforementioned, the opening of a new chapter of the negotiations was a key political decision. Indeed, as the Spanish minister of Foreign Affairs stated, "The political importance (of the opening of the new chapter) is obvious. It shows again that the accession process is still alive and progressing". The EU Commissioner for enlargement, Stefan Füle, added: "The EU's credibility lies on its continued commitment to negotiations. There should be zero-doubts policy about this commitment".

  9. The main reforms Turkey has to undergo

At the opening conference, Mr Füle reminded Turkey that its "credibility lies on the country's commitment to pursue reforms. There should be zero-hesitation policy about these reforms".

In the framework of Chapter 12 opened, Turkey still has to implement primary and secondary legislation so as to conform to the EU requirements. The 2010-2011 Action Plan elaborated by the Turkish Secretariat General for EU affairs provided detailed information about the reforms to be made. First of all, two major laws will constitute the general framework for all the secondary legislation and regulations on this subject. The Turkish Parliament has therefore passed the Law on Veterinary Services, Plant Health, Food and Feed, which was a prerequisite to the opening of the chapter. It also had to adopt a Law on Establishment and Duties of Ministry of Agriculture and Food, thus providing for a single body to be responsible for all the policies of the acquis chapter, as requested by the EU.

Nevertheless, these laws are far from being sufficient in order for Turkey to meet all the exigencies of the EU, but it has to implement secondary legislation. Especially as regard animal diseases, these communiqués, by-laws or circulars will be significantly numerous based on the aforementioned Action Plan. On top of that, the secondary legislation will focus on ensuring the effective implementation of the new EU-based rules by providing for an efficient control procedure: veterinary certificates, hygiene controls by government officials, new testing methods etc.

Finally, on top of the legislative reforms that it has to undergo, Turkey specifies, in the 2010-2011 Action Plan that it will develop a strategy of modernization of Agri-food establishments to meet EU food safety standards, as well as launching a work on identification of deficiencies of the dwellings in terms of animal welfare rules, investments to be made, and determining those for which a transition period will be requested along with a timetable for modernization. Moreover, government will provide the farmers and establishments with information as regards the new norms imposed by the acquis alignment legislation, in order for the latter to be better implemented.

It is worth recalling that in this process of adopting acquis compliant norms, Turkey receives and will further need to receive more financial and technical support from the EU as defined by the financial framework of 2007-2013 adopted by the Council regulation 1085/2006 and the Commission Regulation 718/2007.  

 


By Helene Bidault
ADMD Law Office, Istanbul TURKEY

www.yavuzmavioglu.av.tr