Conclusions for rabbits

As argued by Skoutaris, the island of Cyprus is not the sole territorial or geographical exception to the application of Union law.⁴³ For instance, a Protocol was negotiated, signed and annexed to the Treaty of Lisbon for Poland and the U.K.

which contains derogations from the application of the Charter of Fundamental Rights.⁴⁴ This is an example of a derogation that applies to the entire Member State;

thus, it does not necessarily compare to the situation in Cyprus. However, Skoutaris has exemplified many other Member States where

there are special territories which for either historical, geographical or political reasons have differing relationships with their national

40Apostolides v Orams (n 35) Opinion of AG Kokott, para 40.

41 Skoutaris (n 1) 48.

42 Ibid. See also Uebe (n 37) 390.

43 Nikos Skoutaris, ‘The Status of Northern Cyprus under EU Law. A Comparative Approach to the Territorial Suspension of the Acquis’ in D Kochenov (ed), On Bits of Europe Everywhere.

Overseas Possessions of the EU Member States in the Legal-Political Context of European Law (The Hague, Kluwer International 2011). ₄₄

Article 1(2) of Protocol No 30 on the application of the Charter of Fundamental Rights of the European Union toPoland or the United Kingdom provides that ‘nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.’Consolidated version of the Treaty on the Functioning of the European Union [2012]OJ C 326/0001.

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Governments-and consequently also the European Union-than the rest of the Member State’s territory.⁴⁵

Whilst some of these special territories have no formal bond with the EU, the others take part in EU programs in accordance with the provisions of EU directives, regulations or protocols annexed to the EU Treaties and specifically the relevant Treaties of Accession.⁴⁶

There are seven Outermost Regions where the acquis applies by virtue of Article 355(1) TFEU,⁴⁷ namely; the French Guadeloupe, French Guiana, Martinique, and Réunion, Saint Barthélemy, Saint Martin, the Spanish Canary Islands and the Portuguese Azores and Madeira. The reason there are derogations to the application of EU law in these regions, despite the fact that EU law applies fully, is because the Council is ‘taking account of the structural social and economic situation’ of these areas and ‘their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development’ prior to deciding the conditions of application of the Treaties to those regions, including common policies.⁴⁸ For instance, the Canary Islands are outside the EU Value Added Tax Area.⁴⁹

Interestingly, the Council can adopt these special measures via acting by a qualified majority on a proposal from the Commission and after consulting the Parliament, whereas even the partial withdrawal of the suspension in northern Cyprus necessitates unanimity in the Council once a proposal has been sent from the Commission; already, the difference between the case of Cyprus and these territories is evident. There is a general prerequisite that the derogations need to be limited in time.⁵⁰ Paradoxically, albeit, the suspension of the acquis in northern Cyprus will be lifted once a settlement is achieved on the island-hence a limit has been set- there is the probability that such a settlement will not take place. Consequently, with the suspension of the acquis in northern Cyprus, the Turkish Cypriots are ‘trapped in

45 Skoutaris (n 1) 49.

46 See D Kochenov, ‘The Impact of European Citizenship on the Association of the Oversees Countries and Territories within the European Community’ (2009) 36 Legal Issues of Economic Integration 239.

47 Ex Article 299(2) TEC [2012]OJ C 326. 48 TFEU (n 44) Article 349.

49 Article 6 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax [2006] OJ L 347/1.

50 Case C-212/96 Paul Chevassus-Marche vConseil Régional de la Réunion [1998] ECR I-743.

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paradise’; they are unable to directly utilise the benefits arising out of EU membership and the embargoes inflicted upon them cannot be lifted as a result of the requirement of unanimity in the Council in order to enact certain proposals coming from the Commission.⁵¹

The Outermost Regions are not the only territories which have special arrangements with the Union. There are other territories which also have customised relationships with the club. ‘In most of those cases, their status is governed by protocols attached to their respective countries’ accession treaties. The rest owe their status to European Union legislative provisions which exclude the territories from the application of the legislation concerned.’⁵² For instance, Gibraltar is covered by Article 355(3) TFEU,⁵³which proclaims that the Treaty applies to ‘the European territories for whose external relations a Member State is responsible.’ Gibraltar-a British oversees territory- joined the EEC in 1973 alongside the U.K. In Article 28 of the U.K.’s Accession Treaty it is stated that Gibraltar is outside the Customs Union and Value Added Tax Area; furthermore, it is excluded from the CAP. The Treaties also apply to the Åland Islands-a group of Swedish speaking Finish islands off the Swedish coast-pursuant to Article 355(4) TFEU.⁵⁴ According to Protocol No 2 of the Finnish Act of Accession 1994, there are derogations to the free movement of people and services, the right of establishment and the purchase or holding of real estate in the islands and they are also outside the Value Added Tax Area.⁵⁵ It should also be mentioned that the Treaties also apply to the Channel Islands and the Isle of Man;

yet, according to the arrangements laid down in Protocol No 3 of the Act of Accession 1972, they are only part of the Union for the purposes of customs and the free movement of goods.⁵⁶

Evidently, derogations are not unusual in Accession Treaties; however, the abovementioned examples are significantly different from the case of Cyprus. In the majority of the areas mentioned, there are derogations to the application of the

51 This issue will be thoroughly examined in the chapter 8.

52 Skoutaris (n 1) 50.

53 Ex Article 299(4) TEC.

54 Ex Article 299(5) TEC.

55 Act concerning the condition of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded [1994] OJ C 241/21.

56 Article 355(6)(c) TFEU [ex Article 299(6)(c) TEC].

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acquis, whereas in northern Cyprus, there are derogations to the suspension of the application of the acquis. As mentioned earlier, this territorial nature of the suspension in northern Cyprus means that the Turkish Cypriots can make use of the rights that come with membership, as long as they are not linked to the territory per se. This scenario is comparable to the status under EU law of the citizens of the Oversees Territories.⁵⁷ These Oversees Territories are all connected in some way to one of the Member States and they were asked to form Association Agreements with the Union.⁵⁸ Furthermore, they have the option of utilising the provisions on freedom of movement for workers,⁵⁹ and freedom of establishment.⁶⁰ They can even claim customs duties on goods imported from the Union on a non-discriminatory basis,⁶¹ even though they are not subject to the common external tariff of the Union.⁶²

In sum, EU law will only apply to these territories ‘insofar as is necessary to implement the association agreements’ as they are not directly part of the EU family.⁶³ Thus, this implies that the authorities of the Oversees Territories which are in agreement with the relevant Member States, can negotiate the level of EU integration they desire. This is in direct contradiction to the situation in northern Cyprus; the fact that the RoC is classified by the Union as the sole representative government of Cyprus and that it cannot exercise effective control in the ‘Areas’, means that it can decide the degree of northern Cyprus’ integration to the EU. Hence, the Greek Cypriot authorities control the fate of their counterparts in the north as a result of an EU legal instrument. Is this not indirect political domination of the Greek Cypriots over the Turkish Cypriots via the use of a legal tool provided for by the Union? Does this not hinder the principle of equality on the island?⁶⁴

Another similarity between the case of the Oversees Territories and northern Cyprus is the concept of EU citizenship; like the citizens of northern Cyprus, the citizens of

57 Case C-300/04 Eman and Sevinger v College van Burgemeester en Wethouders van Den Haag [2006] ECR I-8055.

58 Article 198 TFEU [ex Article 182 TEC].

59 Article 202 TFEU [ex Article 186 TEC].

60 Article 199 TFEU [ex Article 183(5) TEC].

61 Article 200(3) TFEU [ex Article 184(3) and (5) TEC].

62 Article 200(1) TFEU [ex Article 184(1) TEC].

63 Article 355(2) TFEU [ex Article 299(3) TEC].

64The RoC, quite understandably, has made use of this legal tool in order to achieve its political objectives quite habitually; for instance, it has prevented the further integration of northern Cyprus by vetoing the adoption of the direct trade regulation- which will be visited later on in the thesis.

Skoutaris (n 1) 52.

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the Oversees Territories are also theoretically considered to be EU citizens, despite the fact that the territories fall outside the territorial ambit of the Treaties. ‘So for example, by virtue of the British Oversees Territories Act 2002, all the British Oversees Territories citizens became British citizens’⁶⁵ and consequently citizens of the EU. Nonetheless, significant differences still exist between the status of the Oversees Territories under EU law and the relevant status of northern Cyprus.

On the one hand, the ECJ held in Kaefer and Procacci⁶⁶that ‘the Tribunal administratif, Papeete, is a French court’⁶⁷ and thus a court of a Member State, even though French Polynesia does not fall under the territorial scope of EU law; on the other hand, Advocate General Kokott, in Apostolides v Orams,⁶⁸ elucidated that the courts in northern Cyprus are definitely not Union Courts even though the entire island is in the EU. It was claimed that it is not possible for ‘the recognition and enforcement of a judgement of a court of a Member State in the northern area of Cyprus’ and that it is also not possible ‘for a judgment of a court situated in that area of Cyprus to be recognised and enforced in another Member State’⁶⁹ under Regulation 44/2001.⁷⁰ So, the military intervention of Turkey to prevent the annexation of Cyprus to Greece in 1974, its continued presence on the island, and the failure to find a settlement to the Cyprus problem during the pre-accession phase of the RoC, are the reasons why the Turkish Cypriots are isolated in the north today.⁷¹ Thus, it could be justifiably concluded that, since the Turkish Cypriots did not have a chance to express their will with regards to the accession of the island and subsequently, the suspension of the acquis in the north, the Member States should have adopted more of a contextualised legal approach whilst drafting Protocol No 10. The EU should have taken into account the sensitivities of the Turkish Cypriots;

hence, the historical, social and political climate of Cyprus. Undoubtedly, the EU and its institutions are capable of being flexible in ‘special cases’ as seen above and

65 Ibid.

66 Joined Cases C-100 and C-101/89 Kaefer and Procacci v France [1990] ECR I-4647.

67 Ibid para 8.

68Apostolides v Orams (n 35).

69Apostolides v Orams (n 35) Opinion of AG Kokott,para 31.

70 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters [2001] OJ L12/1.

71 Skoutaris (n 1) 53.

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Union law can also be stretched.⁷² However, the accession of the entire island accompanied by Protocol No 10 has allowed the RoC to move into the ‘space’ of the TRNC and exert indirect control over the lives of the Turkish Cypriots.⁷³

The German experience is the closest example to the case of Cyprus as regards the representation of a State that is divided; the western Allies had recognised the Government of the Federal Republic of Germany as the only legitimate government of the whole of Germany before the reunification of the country took place.

Conversely, the Government of the Federal Republic of Germany did not act, with legal effect, for the territory of the German Democratic Republic at any point.

Thestatus of the relationship between the Community and the German Democratic Republic was explained by the ECJ in Case 14/74 NorddeutschesVieh-Und Fleischkontor GmbH;⁷⁴ it stated that the relevant rules pardoning West Germany from applying the rules of EEC law to German Internal Trade ‘does not have the result of making the German Democratic Republic part of the Community, but only that a special system applies to it as a territory which is not part of the Community’.⁷⁵ In Cyprus however, the government of the RoC represents the entire island in the EU, despite the fact that EU law will not apply in the north until a solution to the Cyprus problem is found.⁷⁶ Although it was argued in chapter 3 that it would make more sense for the entire island to join the EU in order to avert the reoccurrence of the rushed East Germany experience as regards to accession, the Union should not have allowed the RoC to act, with legal effect, for the territory of the TRNC as this is disregarding the democratic right of self-determination of the Turkish Cypriot community.