Constitutional Foundations of the Judgments on the EEC-Turkey Association Agreement

It is widely accepted that the ECJ judgments on the Ankara Agreement, the Additional Protocol and the Decisions of the Association Council (hereinafter: EU-Turkey association acquis) are crucial points of reference for migration law and wider bilateral relations. While many contributions rightly focus on the formidable doctrinal questions, which individual judgments or lines of cases bring out, this chapter sets off to scrutinise the role of the Court of Justice (ECJ) from a broader perspective. In doing so, this chapter embeds the case law into a wider analytical framework, thereby illuminating the legal and constitutional infrastructure, which guides and explains individual judgments and which marks aspects for critical reflection. Methodologically, this chapter opts for a meta-level of analysis. It is no theoretical paper considering the role of international judges in abstract or concentrating on the legitimacy of judicial review. It rather highlights those doctrinal and constitutional arrangements, which underlie the case law on the EU-Turkey association acquis and which are, in their function of guiding legal assessments, not always given adequate attention by migration law experts without a specialisation in EU law. It will be demonstrated that the Court's interpretation of the Ankara Agreement follows the example of public international law and is, in comparison to other treaties, rather lenient (below I.). Moreover, constitutional frames of reference for Union citizens and third-country nationals in the EU Treaties differ markedly and extend more leeway to the political institutions for the former (II.)