Eva Kassoti, Senior
Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl
Photo credit: Aljabakphoto,
via Wikimedia commons -
On 17th January
2023, the Court of Justice of the European Union delivered its judgment
in Case C-632/20 P Spain v Commission
(Kosovo) ruling that notwithstanding the EU’s non-recognition of Kosovo as
a State, Kosovo may participate in an EU agency, namely the Body of European
Regulators for Electronic Communications (BEREC). The judgment is significant
since it clarifies the meaning of the concept of ‘third country’ - as including
territorial entities which have not been recognized by the EU as sovereign
States - and confirms that such entities may participate in EU agencies. The
judgment may also have more far-reaching consequences in the light of Kosovo’s
2022 bid
for EU membership.
The case is an
appeal against the GC’s judgment of 23 September 2020 (T-370/19,
for comment see here
and here).
At first instance, the GC rejected Spain’s complaint to the effect that
participation of Kosovo’s National Regulatory Authority (NRA) in BEREC is
precluded since the EU has not recognised Kosovo as an independent State and
thus, it does not constitute a ‘third country’ within the meaning of Article 35
of the BEREC
Regulation. The GC argued that the fact that the TFEU makes reference both
to ‘third States’ and ‘third countries’ implies that the latter concept is
broader and thus, that it is “clearly intended to pave the way for the
conclusion of international agreements with entities ‘other than States’” (T-370/19,
para. 30). Spain appealed the GC’s judgment and AG Kokott delivered her Opinion
on 16 June 2022 (for comment see here).
This blogpost
will focus on what is - arguably - the most important aspect of the judgment,
namely how the CJEU treated the question of Kosovo’s participation in an EU
agency as a ‘third country’ despite the absence of EU recognition of its
(claimed) Statehood. It needs to be noted that the background against which the
judgment was given is not only politically laden, since five EU member States
oppose Kosovo’s claim to Statehood, but also quite complex from an
international law point of view – since the international legal status of
Kosovo is unclear and legal opinion is divided (Vidmar,
p. 44; see however, Crawford,
p. 289). While the CJEU (wisely) refrained from delving into questions of Statehood
and recognition, which are closely but not directly linked to the dispute at
bar, its (rather terse) pronouncement on the issue at bar shows a reluctance to
engage with relevant international legal considerations – something that
ultimately detracts from its persuasive force.
Summary of the Judgment
Spain’s grounds
of appeal boiled down to two main questions: a) whether Article 35 (2) of the
BEREC Regulation in conjunction with Article 111 of the EU-Kosovo Stabilisation
and Association Agreement (SAA)
permit the participation of the NRA of Kosovo in the work of BEREC; and b)
whether the Commission enjoyed the institutional competence to adopt the decision
on the participation of the NRA of Kosovo in BEREC. In relation to the first
question, Article 35 (2) of the BEREC Regulation allows the participation in
the agency of ‘third countries’ where those countries have entered into
agreements with the EU to that effect. Thus, the interpretation of the concept
of ‘third countries’ is key here. More particularly, Spain argued that adopting
the GC’s broad understanding of the concept of ‘third countries’ under EU law (as
including entities other than States) would create an autonomous category of EU
law and it would thus confer on the concept a different scope in EU law from
that in international law (para. 35).
The CJEU did not
uphold the distinction between ‘third States’ and ‘third countries’ propounded
by the GC (paras. 37- 47). More particularly, the Court argued that this
distinction is not made in all language versions of the Treaties, and thus, it
cannot necessarily be inferred that a difference in meaning between these two
concepts exists as a matter of primary law (paras. 39-42). Noting that in some
language version of the Treaties the terms are actually used synomously, the
CJEU reprimanded the GC for failing to take into account the relevant
linguistic divergences and thus, to pay heed to settled case-law to the effect
that different language versions must be interpreted in a uniform manner and
that no language version can be made to override others (paras. 40-42). Since
the GC’s finding that the concept of ‘third countries’ within the meaning of Art.
35 (2) of the BEREC Regulation goes beyond the concept of sovereign States was made
on an erroneous premiss, namely that of a difference in meaning between ‘third
States’ and third ‘countries’ in primary law, the CJEU found that the GC’s reasoning
was erroneous.
Against this
backdrop, the CJEU continued by exploring whether the term ‘third countries’ in
Art. 35 (2) of the BEREC Regulation could encompass
Kosovo. The Court found that the principle of effectiveness entails that an
entity not recognized as a sovereign State should be treated as a ‘third
country’ within the meaning of that provision “while not infringing
international law” (para. 50). As far as the latter is concerned, the Court
referred to the ICJ’s Advisory
Opinion on the Kosovo Declaration of Independence as proof that Kosovo’s
unilateral declaration of independence did not violate international law, UNSCR
1244/1999, or the applicable constitutional framework (para. 51).
Furthermore, the Court argued that this conclusion does not affect the
individual positions of Member States since the Commission’s decision
concerning the participation of the NRA of Kosovo in BEREC expressly states
that the designation ‘Kosovo’ is without prejudice to positions on status
(para. 52).
The Court turned
next to the interpretation of the concept of ‘third country’ in Article 35 of
the BEREC Regulation. Article 35 (2) of the BEREC Regulation stipulates that
participation in the agency requires the existence of an ‘agreement’ between
the third country and the EU ‘to that effect’ (para. 54). It underscored the
fact that the Union has entered several international agreements with Kosovo,
“thus recognizing its capacity to conclude such agreements” (para. 55). Article
111 of the SAA provides for co-operation between the EU and Kosovo in the area
of electronic communications and is similar in substance to corresponding
arrangements made with other Western Balkan States which were deemed sufficient
for their NRAs to participate in BEREC. Thus, it is logical to conclude that
the provision also covers the arrangement with Kosovo (paras. 56-59). The fact
that the notion of ‘third country’ also extends to entities such as Kosovo is
further buttressed by having recourse to the purpose of Article 35 (2) of the
BEREC Regulation. The provision was adopted with a view to ensuring the
consistent implementation of the regulatory framework for electronic
communications and thus, it corresponds to the objective of Article 111 of the
SAA which is that Kosovo should adopt the EU acquis in that sector (paras. 61-63).
By way of
contrast to the GC, however, the CJEU found that the Commission lacked the
institutional competence to unilaterally draw up working arrangements applying
to the participation of the NRA of Kosovo in the work of BEREC, and thus, it set
the judgment under appeal aside and annulled the relevant decision – while
maintaining its effects until its replacement by a new act (paras. 96-140).
Comment
Interpretative Approach and Methodology
While the Court,
in a similar vein to the AG, upheld the principle of linguistic equality which
dictates that different language versions must be construed in a uniform manner
and that, therefore, an interpretation of the concept of ‘third countries’ on
the basis of the Treaties alone is inconclusive, it refrained from clearly
setting out its methodological choices in interpreting the term on the basis of
the BEREC Regulation. The Court merely relied on the purpose of ‘ensuring the effectiveness’
of Art. 35 (2) of the BEREC Regulation in order to
argue that Kosovo should be considered as falling within the scope of the
concept of ‘third country’ within the meaning of the provision. However, it is
not immediately apparent how the principle of effectiveness guides the
interpretative process in casu. Arguably, the Court missed here an opportunity
to clarify the role of effectiveness as an interpretative guide which emphasises,
or even prioritises, a teleological approach when the interpreter is confronted
with equally plausible interpretative choices. By way of contrast, the AG
clearly articulated the framework of enquiry into the meaning of the term in
the Regulation (by having recourse to its regulatory context, origin, purpose
as well as relevant international legal considerations) (AG’s Opinion,
paras. 64-86) – an approach which was methodologically sound and thus, led to a
much more convincing line of reasoning.
The Concept of ‘Third Country’ and Relevant
International Legal Considerations
It is important
to note that the CJEU was quite laconic in its reasoning as to why Kosovo
should be considered as a ‘third country’ and it did not really invoke relevant
international legal practice in order to substantiate the view that Art 35(2)
of the BEREC Regulation should be interpreted as covering territorial entities
that have not been recognized as ‘States’ by the Union.
There are many reasons
why this approach is problematic. First, by omitting such references, the Court
failed to address Spain’s argument to the effect that affording a broader
meaning to the term ‘third countries’ under EU law would create discrepancies
with international law – “while States are the key subjects of international
relations” (para. 35). Both the GC (paras. 31-32) and the AG (paras. 83-85),
had invoked the treaty-practice of the Union itself with territorial entities that
have not been recognized as sovereign States by the EU - such as PLO, Hong Kong
and Macao as well as Kosovo - in order to buttress the proposition that entities,
other than States proper, may also enjoy (limited) capacity to act on the
international plane. Indeed, modern
international law acknowledges that legal personality is a spectral concept –
while States are actors that “possess the totality of international rights and
duties recognized by international law” (ICJ, Reparations
for Injuries, p. 180), other actors (such as insurgent groups, national
liberation movements and non-self-governing territories) may enjoy a degree of
legal personality that affords them the capacity to act on the international
plane (including treaty-making capacity). Thus, as the Union’s own
treaty-making practice attests to, disengaging international legal personality
from the capacity to act avoids the misleading dichotomy between ‘subjects’ and
‘objects’ of international law (as Spain’s argument goes) and allows the weight
of enquiry to fall on the extent of the legal capacity a particular entity enjoys
in each case. The capacity to act, including treaty-making capacity, is largely
a question of recognition;
other actors must recognize the (limited) capacity of an effective territorial
entity by entering into legal relations therewith. To be sure, the CJEU did mention
that “the European Union has entered into several agreements with Kosovo, thus
recognizing its capacity to conclude such agreements” (para. 55) – which
arguably shows a degree of awareness of the distinction between States, as the
subjects par excellence of international law, and the wide circle of
participants (with varying degrees of legal capacity) in modern international law.
However, the Court’s failure to expound on the issue and to provide examples
from international legal practice or from the Union’s own treaty-making
practice with non-recognized entities for that matter means that its logic
remains implicit.
Secondly, this
omission is also rather unfortunate in the light of the ‘effectiveness’
argument put forward by the CJEU. The Court could have grounded its effet utile
argumentation exactly by pointing to the wide circle of participants on the
international stage. Thus, the Court could have relied on this line of practice
to further bolster the proposition that a broad interpretation of the provision
at hand is needed in order to ensure that the EU functions as an effective
actor on the global stage – which is no longer dominated by States alone. Of
course, this construction would entail affording a greater role to
effectiveness considerations in the context of interpretation than what they
currently have. Instead of the narrower role of protecting the full effect of
EU law, considerations of effectiveness of the type asserted here would entail
protecting the effectiveness of EU external action – thereby providing the
Court with extra tools to ensure the functionality of the Union as an
international actor.
In this light,
it is perhaps ironic that the Court’s actual reference to international law in
the judgment is rather cryptic. The Court stated that on grounds of securing
the effectiveness of the provision at hand entities not recognized as sovereign
States by the Union should be treated as ‘third countries’ within the meaning
of that provision “while not infringing international law” (para. 50). It is
unclear what the non-infringement of international law meant. The Court’s
subsequent reference to the ICJ’s Advisory
Opinion on the Kosovo Declaration of Independence (para. 51) presumably
implies that Kosovo can be considered as a ‘third country’ since its declaration
of independence does not violate international law – as per the ICJ’s Advisory
Opinion.
This is where
things get murky. According to Art. 41(2) of the ILC
Articles on State Responsibility, there is an international law obligation
bestowed upon third parties not to recognize either formally or implicitly an
effective territorial situation created in breach of a jus cogens norm (see
also Advisory
Opinion on the Kosovo Declaration of Independence para. 81).
However, the CJEU was wrong to assume that the ICJ’s Advisory Opinion
answered the broader question of the legality of Kosovo’s unilateral secession
from Serbia. The ICJ merely gave an affirmative answer to the considerably narrower
question of the accordance of Kosovo’s’ unilateral declaration of independence
with international law – without touching upon questions of Statehood or
recognition. Since a declaration of independence in and of itself does not
create a State, or a new legal situation, it may be considered a legally
neutral act – or as Crawford eloquently put it “the sound of one hand
clapping.” (Crawford,
p. 47). In this light, the CJEU’s reliance on the ICJ’s dictum in order to
support the proposition that dealing with a territorial entity as a ‘third
country’ under EU law does not infringe international law was rather misplaced.
In reality,
there was no need for the Court to make this particular reference to
‘infringements of international law’. The case did not directly involve any
questions of formal – and more importantly, implicit - recognition by the Union
of Kosovo as a State and hence no question of responsibility of the Union could
technically arise here. Art. 2 of the Kosovo SAA expressly states that the
agreement does not constitute recognition of Kosovo’s status as a State by the
Union and, similarly, the Commission decision at hand expressly states that the
designation Kosovo “is without prejudice to questions of status.” The AG
avoided this misstep much more eloquently – by addressing the question whether
the Commission’s decision constituted implicit recognition of Kosovo as a
‘State’ head on (paras. 87-91).
The above
remarks leave the question of whether the EU has an obligation under
international law to withhold recognition of Kosovo as a State open. The answer
is quite complex and it cannot be comprehensively answered here. There are
however several indicia that such an obligation of non-recognition does not
exist in relation to Kosovo. First, there is little evidence to suggest that
Kosovo’s unilateral secession was attributed to a violation of a jus cogens
norm and in casu no specific resolution by the UN calling for collective
non-recognition has been issued (by way of contrast to, for example, Southern
Rhodesia or the TRNC). Recognition by other States also plays an important role
here – having a curative effect in relation to possible deficiencies in which a
State came into being (Supreme Court of Canada, Reference
re Quebec, para. 155). Some 100 States have recognized
Kosovo’s claim to Statehood – something which could be viewed as evidence that
Kosovo’s attempt at State creation has been successful.
Despite its
shortcomings in terms of reasoning on the basis of international law, the
judgment is important as it clarifies that the (rather artificial) distinction
made by the GC between ‘third States’ and ‘third countries’ does not exist – at
least as a matter of EU secondary law. Its implications for Kosovo’s future
relations with the EU remain to be seen – particularly since the question of
whether Kosovo constitutes a ‘State’, as Art. 49 TEU seems to require, remains
open.
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