Recommendations for domestic birds

In order for a practicable solution to the Cyprus problem to be achieved, the Union has agreed to accommodate a solution that would necessitate derogations from EU

72 See Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] ECR 01177; Case C-60/00 Mary Carpenter v Secretary of State for the Home Department [2002] ECR I-06279.

73 See A Philippopoulos-Mihalopoulos, Spatial Justice: Body, Lawscape, Atmosphere (Space, Materiality and the Normative) (Routledge 2014).

74 Case 14/74 Norddeutsches Vieh- Und Fleischkontor GmbH v Hauptzollamt Hamburg-Jonas-Ausfuhrestattung [1974] ECR 899.

75 Ibid para 6.

76 Skoutaris (n 1) 54.

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law. The next section will examine the issue of derogating from the acquis and the potential restrictions to these derogations.

5.4.A. The Attainability of Derogations

Derogations from the acquis perfectly exemplify how the EU can adopt a contextualised legal approach in order to accommodate ‘special’ circumstances.

Article 49(2) EU proclaims that the conditions of admission to the Treaty on which the EU is founded is provided for in every Accession Treaty. As well as integrating the new Member States into the Union, these Accession Treaties contain agreements between the existing and acceding Member States which give way to either permanent or temporary derogations. It should also be noted that derogations from novel developments or provisions of the EU can be negotiated during the process of Treaty amendments; for instance, the U.K. and Denmark opted out of the monetary union in this manner. Derogations have the force of primary law as they are found in either Treaties or in Protocols to Treaties.⁷⁷ Therefore, if Cyprus reunifies in the foreseeable future, it would be legally possible for the newly unified Member State to ask the other Member States to consent to temporary or permanent derogations from the EU acquisthrough Treaty amendments, for the aim of accommodating a settlement on the island.

Furthermore, according to the 5^th Recital of the Preamble to Protocol No 10, the EU can accommodate the terms of a settlement in Cyprus as long as they are in concert with the founding principles of the Union; thus, a simplified procedure that will allow the EU to incorporate the terms of a bi-zonal, bi-communal settlement is obtainable, pursuant to Article 4 of Protocol No 10.⁷⁸ The simplified procedure requires the Council, ‘acting unanimously on the basis of a proposal by the Commission, to decide the adaptations to the terms concerning the accession of Cyprus to the European Union with regard to the Turkish Cypriot community.’⁷⁹ The legislative acts under such an enabling clause, whose aim would be to accommodate the future settlement, can be formally incorporated into primary law for the purpose

77 Skoutaris(n 1) 184.

78 This was also confirmed in the Seville European Council in June 2002. Here, it was added that Cyprus, as a Member State, will need to speak with a single voice and guarantee the correct application of EU law. Council of the European Union, Seville European Council 21 and 22 June 2002, Presidency conclusions, para 24.

79 Protocol no 10 (n 32) Article 4.

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of ensuring legal security within the EU’s legal order.⁸⁰ Thus, even though these acts cannot consist of primary law- as they are not adopted according to the procedure set out in Article 48 TEU- the Treaties can possibly foresee special procedures for their amendment.⁸¹ Hence, the Council can at times amend primary law in a simplified procedure sans ratification of the Member States.⁸²

It could be argued that Article 4 of Protocol No 10 was drafted rather broadly as it came at a time where there was a lot of hope that the Annan Plan would have been accepted by the conflicting Cypriot parties prior to accession; therefore, the request for substantial derogationsfrom the acquis by the peace plan, with regards to property and residency rights, would have most probably been accommodated.

Article 4 would have allowed the EU, by a unanimous Council Decision and with the approval of the reunited Cypriot state, to change the terms of Cyprus’ EU accession.

This would have been an amendment of primary law and those acts would have enjoyed the status of primary law.⁸³ Nonetheless, it should be emphasised that derogations will be limited by the founding principles of the Union.⁸⁴ The question is: can the terms of Cyprus’ EU accession be changed if the TRNC is recognised as an independent state?

5.4.B. But There Are Limits...

The unfettered freedom enjoyed by the Member States in the process of enlargement has beenpartially limited by the judges of the ECJ, who have felt the need to highlight that Article 49 TEU is ‘encompassed within well-defined limits’⁸⁵ in order not to attract too much controversy. Ironically, the Court refrained from identifying

80Hoffmeister F, Legal Aspects of the Cyprus Problem: Annan Plan and EU Accession (Martinus Nijhoff Publishers 2006) 189.

81 For example, the Treaty of Lisbon has introduced a simplified amendment procedure, with limitations. Article 48(6) TEU ‘allows the European Council to adopt a decision, by unanimity after consulting the European Parliament and the Commission, amending all or part of the provisions of Part Three of the TFEU, relating to the internal policies and action of the Union. Such a decision, however, cannot increase the competences conferred on the Union with the Treaties and shall enter into force only when approved by the Member States in accordance with their respective constitutional requirements’, Consolidated Version of the Treaty on European Union (TEU) [2002]

OJ C 325/7, Skoutaris (n 1) 185.

82 Skoutaris (n 1) 185.

83 G Ziegler, ‘The EU-Dimension of a Future Comprehensive Settlement of the Cyprus Problem’ in Ahmet Sozen (ed), The Cyprus Conflict: Looking Ahead (Eastern Mediterranean Printing House 2008) 153.

84 As laid down in Articles 2, 6 and 49 TEU (n 81); see Hoffmeister (n 80).

85 C Hillion, ‘EU Enlargement’ in Craig PP and De Burca G (eds) The Evolution of EU Law (OUP 2011) 214.

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the shape and form of these ‘limits’; however, the Commission broke the silence.

Observations by the Commission were submitted to the ECJ and they claimed that the Member States are subject to three predominant constraints with regards to the accession negotiations. Primarily, derogations from EU law can only be of limited period. Secondarily, Treaty adjustments can only take place if they are required by reason of the accession and that this can be proved. Last but not least, when adjustments are made to the acquis, at all times the Member States are obliged to abide by the founding principles of the EU.⁸⁶ The Commission’s argument was based on Article 2 TEU which states that the aim of the Union is ‘to maintain in full the acquis communautaire.’

Nevertheless, Member States have previously restricted the Four Freedoms; a relevant example would be the Danish prohibition for secondary residence provided for by the Maastricht Treaty.⁸⁷The derogations that will be necessitated if Cyprus reunites are on a similar basis; a bi-zonal, bi-communal settlement will require derogations on the free movement of persons and capital acquis in order for the demographic ratio between permanent residents, who are either Greek or Turkish Cypriot, not to be drastically modified. However, as dictated by international law in the concept of ius cogens,⁸⁸ derogations from primary law cannot involve the core Union principles.⁸⁹ This proves that the Union is in fact an organisation based on democratic principles, as the core principles safeguard democracy, rule of law, human rights and the principle of non-discrimination. A breach of these principles can potentially trigger sanctions under Article 7 TEU. The fact that sanctions will be taken against a Member State for violating the core principles of the Union, means that not only will the solution to the Cyprus problem respect these principles, but the Union will prevent the reoccurrence of the unfortunate events that took place in Cyprus between 1963-1974. Accordingly, a future settlement on the island needs to respect these core principles; nonetheless, it is allowed to contain certain restrictions to the Four Freedoms.⁹⁰

86 Ibid.

87 Protocol (No 32) on the acquisition of property in Denmark Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2008] OJ C115/318.

88 (Compelling Law).

89 Article 48 TEU.

90The full application of the Four Freedoms does not fall within this ‘hard core’ category.

Article 2 TEU.

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Derogations to the internal market freedoms in a unified Cyprus will simply prove that the Union respects the inherent national identities of the Member States, and

‘their essential State functions, including ensuring the territorial integrity of the State...’⁹¹ Nevertheless, will such derogations in Cyprus ensure the protection of specific human rights? Pursuant to Article 6 TEU, ‘the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the EU but also attains the competence to accede to the European Convention of Human Rights.’⁹² Thus, the fundamental rights which are guaranteed by the ECHR are general principles of EU law according to Article 2. The core principle of respect of human rights and fundamental freedoms, which is enshrined in Article 2 TEU and further emphasised in Article 6 TEU, could possibly be breached as a result of the potential restrictions to the right to property and the right to free internal movement and residence in a solution to the Cyprus problem. Evidently, if the rights that are protected by the ECHR are respected, then the Cyprus settlement will in fact be in line with the core principle of respect of human rights and fundamental freedoms. It should be noted however that, ECHR rights-excluding the prohibition of torture- can be subject to limited restrictions. Article 1 of the additional Protocol No 1 to the ECHR claims that ‘[n]o one shall be deprived of his possessions except in the public interest and subject to conditions provided for by law and the general principles of international law’. The corollary of this is that, the derogations in relation to the property rights in the Cyprus settlement will be justifiable in the sense that the aim of the restrictions will be to resolve the property dispute on the island;⁹³ thus, such restrictions are in the public interest.

The land and property owners in Cyprus that are negatively affected by the current state of affairs on the island will not be entitled to full reinstatement upon the conclusion of any kind of a settlement. A bi-zonal settlement would mean that ‘each federated state would be administered by one community which would be guaranteed a clear majority of the population and of land ownership in its area.’⁹⁴ As a result, the restitution scheme will be partial reinstatement for some dispossessed

91 Article 4(2) TEU.

92 Skoutaris (n 1) 189.

93 The property dispute in Cyprus will be examined in chapters 5,6 and 7.

94 Commission, ‘Communication from the Commission to the European Parliament and the Council Annual Report 2006-2007 on the implementation of Community assistance under Council Regulation (EC) No 389/2006 of 26 February establishing an instrument of financial support for encouraging the economic development of the Turkish Cypriot community’ COM (2007) 536.

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owners and partial compensation for the others. It will also most probably protect the current users of the land/property who have no other place to live.⁹⁵ The ECtHR has confirmed that if it is not possible to reinstate the dispossessed owners, then the State that is in breach will need to pay compensation for the value of the property, as it is possible to value and compensate material commodities.⁹⁶

According to Article 2(4) ECHR, restrictions on the right to internal movement and residence will also be accepted in a settlement, so long as they are in line with law and justified by the public interest. Such restrictions thus need to be proportional;

hence, they must be necessitated in a democratic society. It should be reminded that a biz-zonal settlement would have to include such restrictions -without manifestly ignoring the right to internal movement and residence- otherwise, it would not be a settlement based on the principle of bi-zonality.⁹⁷

The broadness of Article 4 of Protocol No 10 implies that a settlement plan based on the principles of bi-zonality, bi-communality and political equality, will be welcomed by the Union. ⁹⁸Evidently, the Union is extremely flexible as regards to accommodating the terms of a settlement and promoting spatial justice; yet, why can this flexibility not be applied to promoting the democratic right of self-determination/secession of the Turkish Cypriot community within the EU? Why can the Union not demonstrate its loyalty to its democratic principles in this manner?

What will happen if a federal settlement is never achieved? The secession of the Turkish Cypriot community is an acceptable solution to the Cyprus problem;a group has the right to freely determine its political status as the right of self-determination is a liberty right according to Beran. Thus, other entities and organisations are obliged to respect this right.

Law is everywhere, it is in everything;⁹⁹ however, justice solely depends on the way in which law is applied and interpreted. If law is used in a way to give an additional political advantage to a certain State over the other, in order for the former to achieve

95 N Loizidees and M Antoniades, ‘Negotiating the Right to Return’ (2009) 46 Journal of Peace Research 611.

96Demopoulos v Turkey (2010) 50 EHRR SE14paras 114-115.

97 F Hoffmeister (n 80) 140.

98 Ibid.

99 See Philippopoulos-Mihalopoulos (n 73) for an analysis of the ‘lawscape’.

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its political objectives, then this is not justice.¹⁰⁰ As it stands, the Union is using law in order to justify its stance towards the Cyprus conflict and thus it is the political considerations of the Union that dictate the way in which it shapes its law around Cyprus;

For a State that is relatively more powerful and its actions more readily deemed ‘legal’ than the State with which it is in dispute, realism would lead us to expect State behaviour to be decided on power political grounds and law would be of relevance only in justifying the resulting policy.¹⁰¹