The Legal Base of the Negotiation Process:

1
The Legal Base of the Negotiation Process
NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
Assist. Prof. Dr. Ayse Saadet Arikan LL.M (Koç
University Law School)
Istanbul June 17, 2008
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II-TURKEY and EC/EU RELATIONS
1963 ANKARA AGREEMENT
Framework Agreement
Framework Agreement
Framework Agreement
Article 28 As soon as the operation of this
Agreement has advanced far enough to justify
envisaging full acceptance by Turkey of the
obligations arising out of the Treaty
establishing the Community, the Contracting
Parties shall examine the possibility of the
accession of Turkey to the Community.
14 April 1987 Full Membership Aplication
.......Turkey is a candidate State destined to
join the Union on the basis of the same criteria
as applied to the other candidate
States........
1999 December Helsinki Summit
2004 December Negotiat. Decs. Oct.2005
3rd Oct.2005 Start of the Accession Negotiation
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Turkey and EU/ECcurrent status of the relation
Turkey ,in broder sence, is in association
relation with the EC
LEGAL SITUATION
CURRENT STAGE
Turkey adopted in April 2007of a 400-page road
map for its EU accession preparations between
2007-2013 .
It is a customs union relation governed by 1/95
Association Council Decision
which is taken based on
negotiations are in process
1963 Ankara Agreement (association agreement)
Accession negotiations (3 October 2005)
and
reached to the stage of
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Negotiation Process
NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
MAIN DOCUMENT

• OUTLINE
• Principles governing the negotiations
• Substance of the negotiations
• Negotiating procedures
• List of Chapter Headings

This decision was taken by the Council on a
proposal by the Commission,on Oct 2005. Basic
principles of the Decision had been drawn by the
European Council on 17 Dec. 2004 in Brussels
Summit
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
objective of the negotiations accession ( but it
is open-ended process no guaranty for the
outcome )
liberty, democracy, respect for human rights
and fundamental freedoms and the rule of law
Legal BaseArticle 49 EU T.
Principles Par.1-3
if Turkey is not in a position to assume in full
all the obligations
Turkey is fully anchored in the European
structures
to protect the cohesion and effectiveness of the
Union
Enlargement should strengthen the integration
EU will also consider (while monitoring Turkey)
Enlarge ment
the Union's capacity to absorb Turkey
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legal base of negotiations

• Article 49
• Any European State which respects the principles
  set out in Article 6(1) may apply to become a
  member of the Union.
• It shall address its application to the Council,
  which shall act unanimously after consulting the
  Commission and after receiving the assent of the
  European Parliament, which shall act by an
  absolute majority of its component members.
• The conditions of admission and the adjustments
  to the Treaties on which the Union is founded,
  which such admission entails, shall be the
  subject of an agreement between the Member States
  and the applicant State. This agreement shall be
  submitted for ratification by all the contracting
  States in accordance with their respective
  constitutional requirements.

• Article 6
• 1.   The Union is founded on the principles of
  liberty, democracy, respect for human rights and
  fundamental freedoms, and the rule of law,
  principles which are common to the Member States

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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
Turkey sufficiently meets the political criteria
The basis of opening the negotiation is
Turkey must sustain the process of reform There
must be further improvements on democracy, the
rule of law and respect for human rights and
fundamental freedoms, ,
Expectation of the EU
Esp. on zero tolerance to torture and ill
treatm, Freed of expres.. Freed.of Relig. Womens
rights ILO standards Minority Rs
legislation must be consolideted and broadened,
PRINCIPLES par.4
legislation must be implemented
intensive political dialogue must continue
on those issues
Commis. must closely monitore the progress, to
report Council and prepare regular reports
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
ex officio or
In the case of a serious and persistent breach of
political criteria
suspension of neg or
Commis. shall recom to the Council
on the request of 1/3 of M/Ss
conditions of eventual resumption
Councildecide by qualified majority upon this
recom.
PRINCIPLES par.5,6
The advancement of the negotiations
will be guided by Turkey's progress
the Copenhagen criteria
Good neighbourly relations Undertaking to
resolve border disputes in ac with
UN Charter Int Co Just
This progress will be measured in particular
against the
Continues support for the seetl. of Cyprus probl
and normalisation of rell with Rep.of Cyprus
fullfillment of oblig. under Ank Agr.Add.Prot.
extending them to all new M/Ssimpl.Acces
Partnership
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the Copenhagen criteriaas a progress measure

• the Copenhagen criteria

• the stability of institutions guaranteeing
  democracy, the rule of law, human rights and
  respect for and protection of minorities
• the existence of a functioning market economy
  and the capacity to cope with competitive
  pressure and market forces within the Union
• the ability to take on the obligations of
  membership, including adherence to the aims of
• political, economic and monetary union and the
  administrative capacity to effectively apply and
  implement the acquis

political criteria
economic criteria
criteria regarding the acquis
the stability of institutions guaranteeing
democracy, the rule of law, human rights and
respect for and protection of minorities
the existence of a functioning market economy
and the capacity to cope with
competitive pressure and market forces within the
Union
the ability to take on the obligations of
membership, including adherence to the aims of
political, economic and monetary union and the
administrative capacity to effectively
apply and implement the acquis
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
towards third countries
with the policies and positions adopted by the
EU and its M/Ss
Turkey align its policies
its positions within international organisations
PRINCIPLES Par.7 ve 8
political
and
the Union will engage with Turkey in
civil society dialog
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
the acceptance of the acquis legislative
alignment,
Accession implies
timely and effective implementation of the acquis
the Treaties
Substance of the negotiations Par.10
legislation and the case law ECJ
interinstitutional agreements, resolutions,
statements, recommendations, guidelines
other acts binding or not?
The acquis is constantly evolving and includes
joint actions, common positions, declarations,
conclusions
acts of CFSPolicy
joint actions, joint positions, conventions
signed, resolutions, statements
acts of JHA.
shall translate the acquis
before accession Turkey
intern. agr. concluded by Communities
mixed agreements.
shall train translators
agr. between the M/Ss
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
all existing bilateral agreements between Turkey
and the Communities
which are incompatible with the obligations of
membership
Turkeys accession imply the termination of
Substance of the negotiations Par.11
and of all other international agreements
concluded by Turkey
Any provisions of the Association Agreement which
depart from the acquis cannot be considered as
precedents in the accession negotiations
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
Turkey
to make adaptations to the acquis
acceptance of acquis
requires Turkey
this exceptionally, give rise to transitional
measures which must be defined during the
accession negotiations
where necessary
Substance and Scope of the Neg. Par.12/1,2,3
principles criteria and parameters
of spesific adaptations will be decided
taking into consid. the spesifities of Turkey
limited in time and scope, and
transitional measures must be
accompanied by a plan with clearly defined
stages for application of the acqui
involve amendments to the rules or policies of
the EU disrupt their proper functioning, or
lead to significant distortions of competition.
this transitional measures must not
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
EU
Long transitional periods, derogations, specific
arrangements or permanent safeguard clauses,
i.e. clauses which are permanently available as
a basis for safeguard measures,
may be considered
The Commission will include these, as
appropriate, in its proposals in areas such as
-free mov. of persons, - structural policies or -
agriculture
Substance and Scope of the Neg. Par.12/4,5
M/Ss should have max. role regard.to eventual
establ. of free mov.of persons
Transitional arrangements or safeguards
competition or the functioning of the internal
market.
should be reviewed regarding their impact on
Detailed technical adaptations to the acquis will
not need to be fixed during the accession
negotiations
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
The financial aspects of the accession of
Turkey will be governed in
Financial Framework
after 2014
the negotiations can only be concluded after the
establishment of the Financial Framework for the
period from 2014
Turkey will participate in economic and monetary
union from accession
Substance and Scope of the Neg Par.13,14,15
He shall adopt the euro as its national currency
following a Council decision
on accession
JHA acquis including Schengen
is binding
but lifting controls on persons at
internal borders is applicable only after the
Council Decision based on evaluation of
Turkeys readiness
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
ADMINISTRATIVE CAPACITY
The EU points out the importance of a high level
of environmental protection, including all
aspects of nuclear safety.
before accession in order to implement the
acquis effectively
Substance and Scope of the Neg Par.16,17
In all areas of the acquis, Turkey must bring its
institutions, management capacity and
administrative and judicial systems up to Union
standards
well-functioning and stable public
administration built on an efficient and
impartial civil service,
This requires
and
judicial system
independent and efficient
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
The negotiations will be conducted in an
Intergovernmental Conference with the
participation of
all M/Ss on the one hand
Turkey
in order to asses the state of preperation of
Turkey
in the screening the Commission explain the
acquis
to Turkey
and
Negotiating procedures Par.18,19,20
to obtain preliminary indications of issues that
might come up in the negotiations
view expressed on a specific chapter will in no
way prejudge the position on other chapters
Screening and Negotiations are carried out on
35 chapters
Also, agreements reached on specific chapters,
may not be considered as final until an overall
agreement has been reached for all chapters
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
Benchmarks for opening and clossing the
Chapters
Commission reports and of its proposal
The Council based on
lay down benchmarks for the closure or
openning of the each chapter
by unanimity
Such benchmarks are communicated to Turkey
the existence of a functioning, market economy,
and exist.of legislative alignment with the
acquis
Depending on the chapter
Negotiating procedures Par.21
demonstrating the existence of an adequate
administrative and judicial capacity
those benchmarks
demonstrate a satisfactory track record in
implementation of key elements of the acquis
include the fulfilment of commitments under
the Ank.Agr, in particular those pertaining to
the EU- Turkey customs union
where neg. lasts longer, or where a chapter
revisited later on bec. of the new acquis, the
existing benchmarks may be updated
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
to indicate its position in relation to the
acquis
Turkey will be requested
and
to report on its progress in meeting the
benchmarks
correct transposition and implementation of
the acquis
Negotiating procedures Par.22
will determine the pace of negotiations
Turkey's
including effective and efficient
application through appropriate administrative
and judicial structures
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NEGOTIATING FRAMEWORK DECISION 3 Oct 2005
for the effective implementation of this Decision
closely monitor Turkey's progress in all areas,
making use of all available instruments,
including on-site expert reviews by or on behalf
of the Commission
The Commission will
when presenting draft EU Common Positions
inform the Council of Turkey's progress in any
given area
Negotiating procedures Par.23
The Council will take this assessment into
account when deciding on further steps relating
to the negotiations on that chapter
Turkey will be required to continue to
provide regularly detailed, written information
on progress in the alignment with and
implementation of the acquis,
even after provisional closure of a chapter
the Commission may recommend the re-opening of
negotiations, in particular where Turkey failed
to meet important benchmarks or to implement its
commitments
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NEGOTIATING PROCESS

• EU SCREENING
• TURKEY DETAILED SCREENING
• -Position Papers
• -Transitional Periods -Impact Assesment
  Reports
• EU COMMON POSITION

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negotiating chapters

• 18-Statistics
• 19-Social policy and employment 1
• 20-Enterprise and industrial policy
• 21-Trans-European networks
• 22-Regional policy and coordination of structural
  instruments
• 23-Judiciary and fundamental rights
• 24-Justice, freedom and security
• 25-Science and research (provisionally closed)
• 26-Education and culture
• 27-Environment
• 28-Consumer and health protection
• 29-Customs union
• 30-External relations
• 31-Foreign, security and defence policy
• 32-Financial control
• 33-Financial and budgetary provisions
• 34-Institutions
• 35-Other issues

• 1-Free movement of goods
• 2-Freedom of movement for workers
• 3-Right of establishment and freedom to provide
  services
• 4-Free movement of capital
• 5-Public procurement
• 6-Company law
• 7-Intellectual property law
• 8-Competition policy
• 9-Financial services
• 10-Information society and media
• 11-Agriculture and rural development
• 12-Food safety, veterinary and phytosanitary
  policy
• 13-Fisheries
• 14-Transport policy
• 15-Energy
• 16-Taxation
• 17Economic and monetary policy

red ones were suspended(8)
blue ones are in process green ones are about to
be openned in June 2008
. The opening of new chapters, however, must be
approved by all 27 M/Ss
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duration and nature of the negotiations

• it appears that negotiating period will be a long
  way to go as mentioned in Neg. Decision, untill
  2014,
• it is not an actual negotiation as the word
  refers, it is rather a check and monitor
  procedure in relation to whether Turkey had
  sufficient progress legislatively,administratively
  and economically in order to accept/harmonise
  and implement the acquis.
• The only bargaining and real negotiating issue
  will be related to transitional measures but
  even those measures will be exceptional,limited
  in time and scope, and their implementing
  principles and parameters will be determined by
  the EU in plan which determines the time schedule
  to implement the acquis as a final goal.