Eva Kassoti, Senior Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl
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).
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.