Eva Kassoti, Senior
Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl
In his Opinion
delivered on 20 February 2021, A.G. Hogan tackled an important procedural
question: Does a third State have legal standing to challenge EU acts before
the CJEU? The question at bar is significant not only because the Court has
never addressed it directly before in the context of sanctions, but also
because it involves enquiring into the principles that mediate the relationship
between the EU legal system and other subjects of international law.
The case is an appeal against the General Court’s judgment
of 20 September 2019, in which that Court was asked to rule on whether
Venezuela could challenge a series of restrictive measures prohibiting the
provision of arms, military as well as surveillance equipment to any natural or
legal person, entity or body in, or for use in, Venezuela.
Answering this question necessitates examining whether the
conditions of Art. 263(4) TFEU (on standing to bring direct actions for
annulment of EU law, if the challenger is not a Member State or EU entity) to have
been met. In casu, the answer is
contingent on examining whether Venezuela is a legal person that is directly
and individually concerned by the measures at hand, or, in the case that the
measures are considered as regulatory acts, it is sufficient to show that these
measures are of direct concern to Venezuela and do not entail implementing
measures. The General Court found that Venezuela was not directly concerned by
those measures, and thus, that it lacked standing under Art. 263(4) TFEU –
without however addressing the question of whether Venezuela is a legal person
within the meaning of the same provision.
In his Opinion, the AG focused on two main issues in order
to answer the question of legal standing: (i) whether Venezuela is a legal
person within the meaning of 263(4) TFEU; (ii) whether Venezuela is directly
concerned by the measures in question within the meaning of 263(4) TFEU. The
A.G. proposed that the CJEU answers both questions to the affirmative. If the
Court follows the A.G.’s line, this could reinforce the image of the EU as a
global actor committed to the rule of law and to effective judicial protection
by recognising in essence that third States have a right to challenge EU law
measures them before EU courts, provided that the conditions set out in Art.
263(4) TFEU are satisfied – even in the absence of reciprocity. This blogpost
focuses on the AG’s analysis of the question of ‘legal personhood’ as the question
of direct concern has been discussed elsewhere.
Is Venezuela a legal
person within the meaning of Art. 263(4) TFEU?
According to the A.G., both international and EU law
considerations buttress the finding that Venezuela should be considered as a
legal person for the purposes of Art. 263(4) TFEU.
International Law
Considerations
In relation to the international law arguments supporting
this finding, the A.G. (correctly) rejected the Council’s assertion that
Venezuela is barred from bringing a suit before the CJEU on the basis of the doctrine
of State immunity. The AG argued that
the law of immunities cannot limit the legal standing of Venezuela since this
action is brought by Venezuela and not against Venezuela. Indeed, State
immunity under international law is aimed at facilitating the performance of
public functions by the State and its representatives by preventing actions
being brought against them before foreign courts. It does not however imply
that third States are barred themselves from appearing as claimants before
foreign courts – as Art. 8 of the 2004 UN
Convention on Jurisdictional Immunities of States and their Property makes
abundantly clear.
However, the rest of his line of argumentation on the basis
of international law seems rather weak and convoluted. The A.G. argued that the
international law principle of comity should inform the interpretation of what
constitutes a legal person for the purposes of Art. 263(4) TFEU and that, on
the basis of comity, the CJEU should be open to challenges brought by States in
their sovereign capacity as international legal persons. It is interesting to
note at this juncture that if the Court chooses to take up this point it would
be the first that it will rule directly on the question of whether
international legal personality implies that an entity is a ‘legal person’ also
for the purposes of an action of annulment. This argument has been expressly
made before by Front Polisario, a national liberation movement with (arguably)
a measure of international legal personality, in the context of the Front
Polisario v Council case, but the General Court eschewed engagement
therewith and ruled on Polisario’s legal personality solely from the standpoint
of EU law.
However, from an international law point of view, the
argument made by the A.G. is rather unconvincing. In fact, there seems to be no
rule of customary international law requiring one State to allow another State
to bring suit in its courts. Rather, comity is a domestic law doctrine (that
has been mainly employed by US courts) under which deference is afforded to
foreign states to bring suits before domestic courts as plaintiffs. The practice
relied on by the AG (the Banco National de
Cuba v Sabbatino judgment by the US Supreme Court) as well as a survey
of other relevant case-law (the Sapphire;
the Hilton v Guyot;
the Santissima Trinidad
– all judgments by the US Supreme Court) attest to the domestic law pedigree of
the principle of comity. The AG failed to show how this domestic law principle
has entered the corpus of international law. Overall, great caution needs to be
exercised in using domestic cases in order to make propositions about general
international law. The very notion of ‘comity’ in international law is linked
to practices of a discretionary character; this runs counter to the modern
understanding of customary international law “as evidence of a general practice
accepted as law” (Art. 38(1)(b) ICJ
Statute).
The international law blunder aside, the question arises as
to whether there are good reasons to adopt the relevant doctrine as a matter of
EU law. While the principle of comity is distinct from international law, it
undoubtedly remains an internationally oriented principle that is important in
shaping a State’s relations with the outside world. Showing deference to third
States as litigants before the CJEU would certainly be within the spirit of
Art. 3(5) and 21 TEU and it would consolidate the external projection of the EU
as a confident and internationally engaged polity committed to the ethos of the
rule of law.
EU Law considerations
The A.G. also relied on a number of EU law precedents where
the CJEU had (en passant) accepted
that third States have legal standing to bring an action for annulment under
Art. 263(4) TFEU – although, admittedly, the context in which these rulings
were made was not that of restrictive measures as is the present one (Cambodia
and CRF v Commission, para. 51; Poland
v Commission, paras. 51,52; Switzerland
v Commission, para. 22). In the context of restrictive measures, the
A.G. found the Court’s judgment in PKK
and NKK v Council of particular importance since it implies that, even
in the absence of legal personality, an entity that is directly and
individually affected by restrictive measures must have access to EU courts in
order to protect its rights. On the basis of these EU law precedents and taking
into account that respect for the rule of law and the principle of effective
judicial protection are core EU law principles, the A.G. concluded that
Venezuela must be regarded as a legal person within the meaning of Art. 263(4)
TFEU – even in the absence of reciprocity since “respect for the rule of law
and the principle of effective judicial protection is not based on any notion
of reciprocity and they cannot be traded or compromised in diplomatic exchanges
or made subject to reciprocal treaty obligations.”
This part of the A.G.’s Opinion is particularly convincing –
especially in the light of the Court’s relevant case-law. In PKK
and NKK v Council, the Court emphasised that the procedural rules
governing the admissibility of an action for annulment must be read with a view
to “avoiding excessive formalism” – something that would amount to denying to
an entity against which restrictive measures have been taken the possibility of
applying for annulment. One may add that it would at least raise an eyebrow if
the Court denied Venezuela - a sovereign State and as such, the example par
excellence of an international legal person - capacity to bring annulment
proceedings, while it has recognised such capacity for entities such as the
Western Saharan Front Polisario and the Sri Lankan Liberation of Tigers of
Tamil Eelan.
While one may concede that there are good reasons to adopt
the A.G.’s approach to legal personhood, the question arises as to whether
there may be far-reaching implications for the conduct of the EU’s foreign
relations. Would allowing third States to challenge EU law measures before the
CJEU open the floodgates for a number of politically charged questions of
recognition of entities (such as Kosovo and Palestine) to be decided by the
Court? This fear seems to be exaggerated. As the doctrine of comity has been
applied by US courts, exceptions are accepted in case of States not recognised
by the US. This would ensure that, while the CJEU shows a great degree of
openness to review measures affecting third States, it would not be used to
make determinations regarding (often politically charged) issues of
recognition.
Barnard & Peers: chapter 24
Photo credit: Archilider,
via WikiCommons Media
No comments:
Post a Comment