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Groups request European Court of Justice to rule on Turkey's involvement in BTC pipeline

first published 30 March 2006

In 2003, The Corner House, Kurdish Human Rights Project and a Turkish citizen applied to the EU court, asking it to rule on Turkey's involvement in the BTC pipeline project. The groups argued that the legal agreement Turkey had signed with the BTC Consortium building the pipeline breached the country's obligations under its legal agreements with the EU aimed at it becoming a member of the European Union. The court ruled in March 2006 that the European Commission's decisions (and its lack of decisions) on accession issues are a matter of discretion and internal concern alone, and cannot therefore be challenged legally.

Background

Turkey has wanted to become part of the European Community since the 1960s. It applied to become a member of the European Union (EU) on 14 April 1987, was officially recognised as a candidate for full membership on 12 December 1999, and accession negotiations started in earnest on 3 October 2005.

To accede to the EU (and before the other member states agree to its membership), Turkey has first to comply with the total body of EU law — the EU's accumulated legislation, legal acts and court decisions — which is known as the acquis communautaire (French for "that which has been acquired" and "of the community"), and is divided into 35 chapters.1 Turkey's "Accession Partnership" agreement requires the country to move towards the acquis.

The Host Government Agreement (HGA) that Turkey had signed with the BTC consortium, however, moved the country in the opposite direction, argued a January 2003 legal opinion (commissioned by The Corner House, Kurdish Human Rights Project, Platform, Baku Ceyhan Campaign and Friends of the Earth) from barrister Philip Moser who specialises in European law. Several clauses in the HGA require Turkey to exempt the BTC Co from any new environmental or social legislation that would impinge on the pipeline's profitability (known as stabilisation clauses). Turkey would not therefore be able to implement the changes needed to ensure its national legislation complies with that of the European Union. The European Commission, moreover, is legally bound to ensure Turkey's compliance with its accession agreement.

In addition to breaking Turkey's accession agreement, the legal agreements underpinning the BTC project also break EU environmental and human rights law, said Moser.

The NGOs and some Kurdish people affected by the BTC project sent a pre-action letter2 to the European Commission on 3 July 2003, asking it to act over Turkey's involvement in the BTC pipeline project and breach of Turkey's accession obligations. The letter pointed out that Turkey had not satisfied the Copenhagen Criteria3 concerning human rights, respect for and protection of minorities in connection with the implementation of the BTC pipeline, and that therefore pre-accession financial assistance to the country from the EU should be frozen until the pipeline project had been modified or stopped.4

With the letter, they enclosed the legal opinion, anonymised witness statements and Fact-Finding Mission reports (see press release).

The Commission replied on 4 August 2003, stating that it would "follow closely the developments in Turkey surrounding this case and give an assessment . . . in its Regular Report [on Turkey's Accession] in November 2003" — but it did not do so.

So on 2 January 2004, Corner House Research, KHRP and Cemender Korkmaz (a Turkish citizen living in France) applied to the European Court of Justice (ECJ)5 to annul the European Commission's Regular Report of 5 November 2003 concerning Turkey's progress towards accession. The reasoning behind the request was that the Commission had refused to make a recommendation to the European Council in this Report regarding pre-accession financing for Turkey from the Commission.

The Corner House submitted a witness statement highlighting the potential impacts of the BTC project on wildlife, particularly on the marine turtle's nesting grounds and the Yumurtalik Lagoons wetland area and the inadequacies of the BTC project's Environmental Impact Assessment. (As flora and fauna impacted by the pipeline cannot represent themselves, the statement argued that "it is . . . incumbent on others to represent them . . . if their interests are to be protected".)

KHRP submitted a witness statement on behalf of Kurdish people living in the regions, contending that they had been discriminated against during the BTC consortium's consultation process. Many of those who had earlier given anonymous witness statements were frightened to give their names, given that the person who had been helping them to do so in Turkey had been arrested, detained and subjected to ill-treatment/torture by the Turkish security forces. "The fears of such villagers are well founded as the former and current detention and ill-treatment or torture of Ferhat Kaya shows", said the witness statement. This was particularly the case "given the nature of the challenge being made . . . which, from the viewpoint of the Turkish security services, will be perceived as a direct challenge to the State's authority in having signed the Host Government Agreement (HGA)."

On 18 May 2004, the European Commission responded, objecting to the case as inadmissible on the grounds that the Commission has discretion over its decisions (and lack of decisions) on matters relating to accession and because neither The Corner House, KHRP or Cemender Korkmaz would be directly affected by the Commission's decision.

On 21 July 2004, The Corner House, KHRP and Cemender Korkmaz responded to the Commission's observations, clarifying and reiterating their points and asking the courts to dismiss the Commission's objections.

On the basis of these papers, the Court of the First Instance (an ECJ lower court) considered the case, and on 30 March 2006 declared it to be inadmissible on the grounds that individuals cannot challenge the European Commission's decision on pre-accession financing, as the decision a matter of discretion and internal concern alone. The Court held that the Commission's silence on the matter of financing "cannot be regarded as tantamount to an implied refusal to act".

The judgment makes new law, in stating that European Commission assessment of Turkey's progress towards meeting the Copenhagen Criteria is entirely internal and cannot be reviewed by individuals. More broadly, the decision means that European citizens cannot ask the courts to review decisions to allocate or not allocate the funds of European taxpayers(see para 50 of judgment).

The Court also stated that the principles of democracy, access to court and effective judicial protection make no difference to its conclusions.

1

 

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  29. Customs union
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  32. Financial control
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  34. Institutions
  35. Other issues

 

2 A person or group who is thinking of taking legal action against a public body sends a letter from their lawyer to that body identifying the issues in dispute and aiming to establish whether litigation can be avoided, for example, by the public body making decisions or reversing previous ones.

3The "Copenhagen criteria" define whether a country is eligible to join the European Union or not. They require a state to have stable institutions to guarantee democracy, the rule of law, human rights, respect for and protection of minorities and a functioning market economy. They assume that a country accepts the obligations and intent of the EU, including political, economic and monetary union. These membership criteria were set out a European Council meeting in June 1993 held in Copenhagen, Denmark. During accession negotiations with a candidate country, progress towards meeting the Copenhagen criteria is monitored regularly.

4 The February 2001 "Accession Partnership" legal agreement between the EU and Turkey provides for the European Council to "take appropriate steps with regard to pre-accession assistance granted to Turkey" if the country's progress towards fulfilling the Copenhagen criteria is insufficient.

5 The European Court of Justice (ECJ) is the highest court in the European Union in matters of EU law, tasked with interpreting EU law and ensuring its equal application across all EU member states. To help the ECJ, a 'Court of First Instance' (CFI) was created in 1988 to give rulings on actions brought by individuals, companies and some organisations (among other responsibilities). The legal action sought in this case was heard by the Court of First Instance.

Since the Treaty of Lisbon came into effect on 1 December 2009, the European Court of Justice's official name became the "Court of Justice", but in English it still tends to be referred to as the European Court of Justice. At the same time, the Court of First Instance became the "General Court".