Wednesday 31 May 2023

Advocate General’s Opinion in Grupa Azoty again lays bare a serious gap in EU judicial protection, yet does nothing to plug the hole


Professor Geert van Calster, University of Leuven

Photo credit: Wojciech Antosz, via Wikimedia Commons


Executive summary: Early March Pikamäe AG opined in Joined Cases C 73/22P and C 77/22 P Grupa Azoty S.A. et al v European Commission, an Appeal procedure regarding the admissibility of an application for partial annulment of the Commission September 2020 ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’. Pikamäe AG considers that the Applicants do not have standing to challenge the Guidelines at EU level. I challenge that position, in the light of the right to judicial review before the European Courts and of the Courts' case law on the matter. I conclude that the Opinion mistakenly identifies national judicial review of entirely speculative national measures as a guarantee to access to justice, and that in doing so it compounds the challenging limitation of access to the courts in a wider context (including the environmental context), too.


Introduction to the case at issue

In early March Pikamäe AG opined in Joined Cases C‑73/22P and C‑77/22P Grupa Azoty S.A. et al v European Commission. At first glimpse the case undoubtedly looks pretty dull to most observers, seeing as it engages an application for partial annulment of the Communication from the Commission of 25 September 2020 entitled ‘Guidelines on certain State aid measures in the context of the system for greenhouse gas emission allowance trading post-2021’. Hardly rock and roll. Such aid is generally granted to address potential ‘carbon leakage’, i.e. relocation of industry away from the EU and its stricter climate rules. The applicants manufacture fertilisers, nitrogen compounds, and man-made fibres, a sector not listed in Annex I to the guidelines at issue. This means they are no longer (for the sector was included in the previously applicable Annex II of the 2012 Guidelines) considered to be at risk from carbon leakage.

The General Court having declared the applications inadmissible due to lack of standing, the case has now come before the Court of Justice upon appeal.

A core element in the General Court’s reasoning was [40-42] that the undertakings’ right to challenge the removal from the Annex and their consequential loss of potential State Aid, continued to be guaranteed seeing as Member States may still grant them such aid outside of the Guidelines’ framework, subject to notification to the European Commission. The likely refusal by the Commission to declare the aid compatible with the Internal Market, may then, the General Court suggested, be challenged before the European Courts.

It is this speculative reasoning which raises general concerns with respect to access to justice before the European Courts.


General framework for access to judicial review before the European Courts

Access to judicial review proceedings at the Court of Justice of the European Union (CJEU) is a long contested issue. Article 263 TFEU grants EU Institutions ‘privileged access’ to the European Courts. These are included in paragraphs 2 and 3 of the Article and they are the Member States, the Council, the Commission, the European Parliament, the Court of Auditors, the European Central Bank and the Committee of the Regions. The latter 3 Institutions may only bring an action "for the purpose of protecting their prerogatives".

The fourth paragraph of Article 263 TFEU deals with the so-called "non-privileged" applicants. In the General Court’s Order in the case under discussion, standing requirements for the non-privileged applicants are summarised as follows [26]:

“The admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Secondly, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them..” (references to case-law omitted).


Direct concern. The condition of "direct concern", while a hurdle, is not their main stumble block for standing. Indeed for a person to be directly concerned by a Union act, the measure must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being pure, automatic and resulting from Union rules without the application of other intermediate rules. This is recurrent case law, going back in particular to the 1978 Simmenthal judgment.

Individual concern.  The condition of "individual concern", turned out to be much more of roadblock. The approach of the Court is known as the "Plaumann" test, after a 1963 case involving a German importer of clementines. The CJEU held in Plaumann that

"(p)ersons other than those to whom a decision is addressed, may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed."

This test is difficult enough on paper itself. However in practice it has become even more stringent in that for economic operators, the Court typically holds that these are affected by reason of a commercial activity which may at any time be practised by any person and is not therefore such as to distinguish the applicant in relation to the contested measure as in the case of the addressee. The Plaumann test essentially amounts to a "closed shop" test: to be individually concerned by a decision addressed to another person (including Regulations and Directives addressed to Member States), an applicant needs to show that it is part of a "closed circle of persons who were known at the time of its adoption"  (a much repeated formula, e.g. in Federcoopesca).


The second alternative for standing in the case of non-privileged applicants (actions viz regulatory acts not entailing implementing measures if that act is of direct concern to them) obviously drops the strict ‘individual concern’ requirement and was introduced with the Treaty of Lisbon. In PGNiG Supply, the General Court held [54] that the condition

“is to be interpreted in the light of that provision’s objective, which, as is clear from its origin, consists in preventing an individual whose legal situation is nevertheless directly altered by an act from being denied effective judicial protection with regard to that act. In the light of that objective, it appears that the third limb of the fourth paragraph of Article 263 TFEU is designed to apply only when the disputed act, in itself, in other words irrespective of any implementing measures, alters the legal situation of the applicant.”

The core to this argument of the General Court’s order, is quite clearly and as it emphasises itself, the rule of law’s core contention of ensuring effective judicial protection.

It is on this point that I should like to take issue with Pikamäe’s Opinion in Grupa Azoty.


The challenge with the AG Opinion

—The AG’s suggestion (32) that the Court for the first time needs to hold on the potential to challenge Commission State Aid guidelines is, with respect, neither here nor there. The standing requirements for judicial review necessarily focus on the content of the measure, regardless of their nomenclature. The Guidelines at issue are developed in such detail and, importantly, with the specific instruction not to grant aid to non-Annex sectors, that one fails to see where the Member States’ discretion may at all lie. The AG’s reference (35) ff to the legal nature of guidelines, circumscribed only by general principles of EU law such as proportionality, are sophistic at best, and his continued use of the word ‘soft-law’ for Guidelines of this kind obfuscates their true impact.

—The AG’s justification of the General Court’s abstract reasoning as fitting perfectly within the Court’s existing case-law, may be arguable at a theoretical level in the light of the CJEU authorities. Yet it fails to consider the practical impact of the Guidelines. At this point, it is useful to remind ourselves of the consequences of the standing rules in the perhaps more rock and roll area of environmental law.

The impact of the restrictive approach to standing in the area of environmental law, paved the way for Advocate General Jacob’s Opinion in Union de Pequenos Agricultores (UPA) – not followed by the Court, and to what was then the Court of First Instance’s judgment in Jégo-Quéré. The Court of Justice however rejected the AG’s and CFI’s attempts to broaden access in Greenpeace.

Regardless of whether the CJEU was correct in Greenpeace (I would submit it was not), at least its optimistic presumption in that case that access to effective judicial protection is guaranteed via the preliminary reference procedure, somewhat cynically bears out in practice. The route via national courts presupposes that the Union measure at issue requires acts of implementation by the national authorities. This often then obliges the individual concerned to engineer a violation of the rules laid down by the measures, and subsequently use invalidity as a defence in any criminal or civil action directed against it. As Advocate General Jacobs argued, it would seem unacceptable that individuals be required to break the law, in order to gain access to justice. Yet, at least this engineered route is often available.

In the scenario at issue in Grupa Azoty, that prospect is fanciful. One cannot engineer a breach of State Aid rules in the entirely speculative case that a Member State does, despite the clear instructions in the guidelines, grant aid outside of it.

—Importantly, the AG in his final considerations puts the access to justice cart before the horse, where he argues

“whilst I am aware of the prevailing opinion regarding the need to expand the routes by which individuals access justice at EU level, I question whether it would be desirable, in general, for the Court to find that a soft law instrument like the guidelines at issue is a challengeable measure, and that any competitor that is able to show that it satisfies the requirement of direct concern, as identified in the judgment in Montessori, is thus entitled to bring a legal challenge where that measure constitutes a ‘regulatory act’ within the meaning of the last paragraph of Article 263(4) TFEU. I would note in this regard that, because they can be adopted quickly and adapted to contingent economic situations, these soft law instruments have been used, for example, to frame the Member States’ response to the recent crises caused by the collapse of the banking system, the COVID-19 pandemic and the outbreak of the war in Ukraine. In such situations, could the Commission be expected to adopt measures to make the exercise of its discretion more foreseeable and transparent knowing that the lawfulness of certain provisions can be directly challenged before the General Court? Could an increase in the number of those actions, which would then seem easily foreseeable, not paralyse the Commission’s clarificatory action? Is the revision of the problematic provisions of those measures by the Commission itself not sufficient for the economic operators concerned?”


With respect, first of all the practical implications of granting in the case at issue a circumscribed group of applicants standing, are exceedingly minimal. Under the current Guidelines only a very small group of operators have lost potential State Aid to which they had access under the previous ones. More fundamentally, practical management of access to courts necessarily must follow that very access being guaranteed — not the other way around: access must not be circumscribed by its practical management.


In conclusion, the Opinion mistakenly identifies national judicial review of entirely speculative national measures as a guarantee to access to justice. In doing so it compounds the challenging limitation of access to the courts in a wider context (including the environmental context), too.  

Tuesday 16 May 2023

AG de la Tour’s Opinion in C-621/21: A Welcome Clarification on, or an Introduction of Unnecessary Obstacles to, Entitlement to International Protection for Women at Risk of Gender-based Violence?



Dr Maja GrundlerLecturer in Law, Department of Law and Criminology, Royal Holloway, University of London

Photo credit: achrafmoroccan, via Wikimedia Commons




On 20 April 2023, Advocate General (AG) de la Tour issued an Opinion in case C-621/21. The case concerns the scope of the refugee definition in Article 2(d) of the Qualification Directive, and of the definition of beneficiary of subsidiary protection in Article 2(g) of the Directive, in relation to women at risk of violence in the family context. The issue raised by case C-621/21 is not a novel one. The question whether, and under what circumstances, women experiencing domestic violence can claim asylum has been debated by academics, national courts and other stakeholders for many years. The United Nations High Commissioner for Refugees (UNHCR) issued guidelines on international protection concerning gender-related persecution (UNHCR Guidelines) as early as 2002, clarifying that ‘family/domestic violence’ is a common reason for gender-related persecution. The Court of Justice of the European Union (CJEU), however, received its first request a preliminary reference on the issue only in 2021, from the Administrative Court of Sofia, Bulgaria.


This blog post will argue that while AG de la Tour’s Opinion makes some welcome clarifications with regard to eligibility for international protection of women fearing violence in the family context, the reasoning employed in the Opinion is not in line with the standards contained in the UNHCR Guidelines and, in fact, introduces unnecessary obstacles to claiming international protection.



Facts of the case and questions referred

The case before the Administrative Court of Sofia concerns a Kurdish woman of Turkish nationality whose application for international protection is based on a fear of violence in the family context, more specifically, an honour crime and forced marriage. The applicant experienced violence and threats at the hands of her ex-husband, her family and the husband’s family. She left and divorced her husband and entered into a religious marriage with another man, with whom she has a child. She fears that she will be the victim of an honour crime and be forced to re-marry if returned to Türkiye.


The Bulgarian authorities dismissed the applicant’s initial claim, as well as her appeal, and refused to open a new procedure when she submitted a subsequent application.


The case came before the Administrative Court of Sofia, which submitted five questions, seeking clarification on the relationship between the Qualification Directive’s concept of gender-based violence and relevant international law definitions under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention); how to establish membership of a particular social group (PSG) in the context of protection claims based on gender-based violence generally, and domestic violence specifically; how to establish the necessary link between acts of and reasons for persecution in this context, considering the actors of persecution are non-state actors; and whether the harm experienced in this context can be classed as ‘serious’ for the purpose of qualification for subsidiary protection.



The concept of ‘gender-based violence’ in international and EU law

AG de la Tour’s opinion commences with an examination of the first question referred by the Administrative Court of Sofia, which concerns the concept of ‘gender-based violence’ and how it is defined in international and EU law.


Referring to Article 78(1) TFEU and its requirement that EU asylum policy must be in accordance with the 1951 Convention relating to the Status of Refugees (Refugee Convention), its 1967 Protocol and ‘other relevant treaties’, the AG examines which treaties are in fact relevant in the present context.


Highlighting the particular importance of the Refugee Convention, the AG draws on the above-mentioned UNHCR Guidelines concerning gender-related persecution (confusingly, at times, UNHCR is referred to as the ‘HRC’ – presumably ‘High Refugee Commissioner’ – an abbreviation commonly used to refer to the Human Rights Committee, i.e. the body tasked with monitoring the implementation of the ICCPR – and, other times, as ‘HCR’). The AG states that the UNHCR Guidelines serve as a relevant point of reference for understanding the meaning of ‘gender’ and its relevance to the refugee status enquiry. He also refers to the EU Victim Protection Directive, which defines gender-based violence in Recital 17.


In contrast, he dismisses the relevance of both the CEDAW and the Istanbul Convention for the purpose of implementing the Qualification Directive, since the EU has not ratified and acceded to, the two instruments, respectively. Considering that the UNHCR Guidelines explicitly refer to the CEDAW, among others, as an instrument which has assisted ‘the analysis and understanding of sex and gender in the refugee context’ (para 5, n2), the relevance of the two instruments is, perhaps, too easily discounted (the UNHCR Guidelines do not refer to the Istanbul Convention which only opened for signature in 2011, nine years after the Guidelines were published).


As will become apparent from the discussion below, the Opinion also ignores other important aspects of the UNHCR Guidelines.



Women at risk of violence in the family context and membership of a PSG

AG de la Tour then moves on to examine the next issue raised by the referring court: the question how to establish membership of PSG in the context of protection claims based on gender-based violence generally, and domestic violence, honour crimes and forced marriage, specifically.


Setting out the two tests for establishing a PSG – the ‘innate characteristics’ and the ‘social perception’ test – and recalling their cumulative nature under the Qualification Directive, the AG explains how both can be met by women at risk of domestic violence.


First, he states that ‘the applicant’s gender may be associated with an innate characteristic – namely her biological sex – “that cannot be changed”’ (para 71), so that the first test can be met with reference to being biologically female. While the UNHCR Guidelines endorse this approach (para 30), they also make it clear that is sufficient to meet one of the two tests to establish membership of a PSG (para 29). In the particular context of EU law, then, which requires that both the ‘innate characteristics’ and the ‘social perception’ test must be met cumulatively, relying on biological sex to meet the former test becomes problematic.


Relying on biological sex – a problematic and difficult to define notion in itself – for the purpose of the innate characteristics test creates a risk of excluding trans persons from membership of the relevant group, even though, based on their differential treatment by surrounding society, they may satisfy the social perception test (UNHCR Guidelines, para 30). While the applicant in the case referred by the Administrative Court of Sofia is not a trans person, AGs’ opinions and CJEU judgements have repercussions not just for the applicant in the particular case, but for many others down the line. Thus, when defining particular terms of EU law, AGs and the Court should be mindful of the possible consequences of their statements and seek to avoid restrictive interpretations of EU law which could have negative consequences for other applicants. As Avgeri notes, establishing membership of a PSG on grounds of (trans or non-conforming) gender is extremely complex. Thus, the issues raised by different gender identities should be carefully considered in any discussion on gender-related persecution (more carefully than the scope of this blog post permits). Unfortunately, AG de la Tour has taken a different approach in his Opinion.


The Opinion also takes a problematic approach to the social perception test. While it is positive that the AG explains that gender is a social construct which creates inequalities between men and women, and thus states that ‘women, solely on account of their condition as women, are an example of a social group defined by innate and immutable characteristics liable to be perceived differently by society’, the AG then goes on to qualify this by adding that women are perceived as different ‘according to their country of origin, by reason of the social, legal or religious norms of that country or the customs of the community to which they belong’ (para 72).


Claiming that the relevant PSG ‘is made up of women in a given society (and not by “women” in general)’ (ibid; emphasis added) leaves room for claiming that, in some societies, women are not perceived as different and this may, in turn, have negative repercussions for women from societies perceived as ‘progressive’. While the UNHCR Guidelines agree that social, legal or religious norms play into the differential treatment of women, they still designate ‘women’ as the relevant PSG (para 31). Seven years after the #MeToo movement began to demonstrate the scale of (sexual) violence against women worldwide, the AG’s approach to the social perception test seems out of touch with the lived experiences of women in all societies.


Continuing to focus on the cultural context of the country of origin for the purpose of the social perception test, the Opinion then turns to discussing the relevance of Recital 30 Qualification Directive for establishing membership pf a PSG. The Recital states that


For the purposes of defining a particular social group, issues arising from an applicant’s gender, including gender identity and sexual orientation, which may be related to certain legal traditions and customs, resulting in for example genital mutilation, forced sterilisation or forced abortion, should be given due consideration in so far as they are related to the applicant’s well-founded fear of persecution (emphasis added).


The AG interprets this to mean that the acts of persecution referred to in the Recital ‘may be applied for the purposes of defining [the relevant PSG]’ and that it is ‘the nature of the acts of persecution, which refer to particular victims, that allows the “distinct identity” of a social group to be characterised’ (para 76).


Returning to the facts of the case before the Administrative Court of Sofia, the AG then states that there is ‘nothing to prevent a competent national authority from considering that a female child or adolescent, or even a woman, is a member of a particular social group on the ground that she would be exposed, if she were to return to her country of origin, to a risk of forced marriage’ (para 77) and that national authorities would also be entitled to find that ‘a woman who would be forced to return to her country of origin belongs to a group having its distinct identity in that country on the ground that, by her return, she would be exposed in that country to acts of serious marital violence (beatings, rape and other sexual harm, etc.) that are traditional in certain communities’ (para 78).


This approach comes dangerously close to defining the PSG with reference to the persecution feared, while the UNHCR Guidelines remind us that ‘a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society’ (para 29; emphasis added). Although the AG considers that the persecution feared is relevant in the context of the social perception, rather than the innate characteristics test, referring to the precise risk is entirely unnecessary if we can accept that the relevant PSG is ‘women’ and not ‘women in a given society’.



The link between acts of and reasons for persecution

The next question the Opinion examines concerns the link between the persecution feared and the Convention ground ‘membership of the PSG’, in the present case the PSG ‘women (in a given society)’. When compared with the standards contained in the UNHCR Guidelines, some problematic aspects are immediately apparent in this section of the Opinion.


The Opinion delves into a detailed discussion on the state of origin’s inability or unwillingness to protect (since the harm feared emanates from non-state actors). This discussion, however, is not necessary for determining the link between the persecution feared and the Convention ground. As the Qualification Directive states, and the AG reiterates at para 89, such a link can be established by finding a connection either ‘between the reasons [for persecution] and the acts of persecution … or the absence of protection against such acts’ (Article 9(3); emphasis added). Similarly, the UNHCR Guidelines state that


In cases where there is a risk of being persecuted at the hands of a non-State actor (e.g. husband, partner or other non-State actor) for reasons which are related to one of the Convention grounds, the causal link is established, whether or not the absence of State protection is Convention related (para 21).


The AG, however, finds that ‘the competent national authority is … required to assess whether a causal link can be established between, on the one hand, the reasons underlying the acts of domestic violence committed within the household or the family circle, namely membership of a particular social group, and, on the other hand, the absence of protection on the part of the authorities of the country of origin … against those acts’ (para 90). Since membership of the PSG ‘women’ explains why women experience domestic violence at the hands of non-state actors, the link should be established without considering the reasons for an absence of state protection. Requiring a link between the reasons for persecution and failure of state protection without explaining that the link can, alternatively, be satisfied by establishing a connection between the reasons for and the acts of persecution introduces an additional hurdle into the refugee claim.



Eligibility for subsidiary protection

Finally, the AG deals with the question of eligibility for subsidiary protection. This section contains some welcome clarifications. Most importantly, the fact that an honour crime, which ‘consists in putting a person to death’ constitutes an ‘execution’ for the purpose of Article 15(a) Qualification Directive (paras 106-107) and that other acts of domestic violence can amount to ‘serious harm’ for the purpose of Article 15(b) Qualification Directive.




AG de la Tour’s Opinion in C‑621/21 makes some welcome clarifications, but the devil is in the details. Importantly, the Opinion clarifies that women fearing violence in the family context can be granted refugee status since they can establish membership of a PSG and that those women who cannot claim refugee status are likely to be entitled to subsidiary protection. Yet, the AG’s Opinion is problematic, not because of its overall findings, but because of the reasoning employed in arriving at these findings. Both the proposed way of establishing membership of a PSG and the nexus to Refugee Convention grounds introduce potential difficulties for applicants fearing gender-related persecution.


Indeed, the AG’s views on establishing a PSG, and the link to the persecution feared, do not align with the standards contained in the UNHCR Guidelines, despite the AG referring to their importance and relevance earlier in the Opinion. Thus, AG de la Tour’s Opinion seems to seek to maintain the trend of the CJEU selectively engaging with international (soft) law instruments in interpreting the Qualification Directive.


In conclusion, while, at first glance, the Opinion seems like a welcome clarification on entitlement to international protection for women at risk of gender-based violence, much of the discussion in fact introduces unnecessary obstacles to claiming such an entitlement.



How should the EU respond to the illegal closure of the Lachin corridor?


Nariné Ghazaryan, Assistant Professor in International and European Law, Radboud University Nijmegen

Photo credit: Alexander Naumov, via Wikimedia Commons   

When the 2020 Nagorno-Karabakh war came to an end through the adoption of the trilateral statement between Russia, Armenia and Azerbaijan on 9 November (Tripartite Statement), those closely observing the region were convinced that peace was still far away. By mid-2021, it became plain obvious that the ceasefire did not hold when attacks against the Armenian territory took place earlier in May. It is at this stage that the EU finally assumed leadership in fostering peace talks between Armenia and Azerbaijan. This leadership materialised through the high-level mediation by the President European Council, Charles Michel in relation to the release of prisoners of war, behind the scene diplomatic efforts and high-level trilateral meetings taking place through the course of 2021-2022. With the trilateral meeting in August 2022 hopes were running high that the EU could broker a deal to bring the parties closer to the resolution of their long-standing differences. In an affront to the EU’s efforts, however, Azerbaijan undertook a large military offensive against Armenia in September 2022 occupying parts of its territory and leading to new allegations of war crimes (Hauer, Euractiv 2022; Freedom House 2022; PACE 2022). Despite these developments, no immediate reaction followed by the EU. Continuous diplomatic engagement was preferred instead, with another high-level meeting taking place at the Prague summit in October 2022.

By that time, Armenia had already appealed to various international organisations requesting international presence on its territory (Council of the EU 2022; OSCE 2022). In a positive move, the EU responded swiftly by deploying a temporary CFSP border mission on the territory of Armenia (Council Decision (CFSP) 2022/1970). In an affront to the EU mediation efforts, President Aliyev of Azerbaijan shortly after declared his opposition to the mission, noting further that Azerbaijan did not permit the mission to be deployed on its territory (The Armenian Weekly, 18 October 2022). Although the mission was subsequently extended for a longer period (Council Decision (CFSP) 2023/162), its presence in the region did not prevent further hostilities on the territory of Armenia or in Nagorno-Karabakh.

Under the trilateral statement of November 2020, the safety of Nagorno-Karabakh Armenians was to be guaranteed by a Russian peace-keeping contingent. The presence of the latter, however, did not prevent further attacks since then. Rather the latter events confirmed the doubts about Russia’s genuine interest in the conflict resolution. When in December 2022, Azeri ‘eco-activists’ blocked the Lachin corridor, the only land route connecting Nagorno-Karabakh to Armenia and the only life line for the region’s economic survival, no action followed by the Russian forces. This was a blatant violation of the trilateral statement of November 2020 according to which the Lachin corridor ‘shall remain under the control of the peacekeeping contingent of the Russian Federation’, while ‘[t] he Republic of Azerbaijan shall guarantee safe movement of citizens, vehicles and cargo in both directions along the Lachin corridor’ (para 6, Tripartite Statement).

It is clear that without a ‘green light’ from the Russian side the blocking of the road would have been impossible. While the image of Russia as Armenia’s security guarantor has long been shattered, the events of the Lachin corridor can be seen as exerting pressure over Armenia keen to build closer ties with the EU, the US and the international community more generally. Any threat to the Armenians of Nagorno-Karabakh can lead to political turbulence in Armenia threatening the position of its pro-Western government. The fate of the Armenians of Nagorno-Karabakh is therefore left in the hands of the Russian army and Azeri government with its entrenched Armenophobia (UN Committee on the Elimination of Racial Discrimination, 2016). Although statements were issued by the EU representatives calling on Azerbaijan to ensure the free passage through the Lachin corridor (EEAS, December 2022), there were no suggestions that lack of compliance will be followed by appropriate EU response. 

Few months into the blockade, the ICJ confirmed the Azeri responsibility for the blocking of the land corridor ordering the latter in interim to ‘take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions’ in the case of Armenia v Azerbaijan concerning alleged violations of CERD (para 62 of the Order).  As in the past, a call on Azerbaijan followed from the EEAS spokesperson to comply with the ICJ order without hinting at possible consequences of  lack of compliance (EEAS, February 2023). Only the European Parliament in its subsequent resolution called for sanctions to be imposed on Azerbaijan if the latter fails to implement the ICJ’s order (European Parliament 2023). In defiance of the ICJ judgement and the calls of the international community, Azerbaijan not only did not unblock the road, but in further escalation it dropped the pretense of eco-activism and established a military check-point at the Lachin corridor in April 2022. In addition, attacks continued against the Armenian territory and Armenian soldiers despite the presence of the EU border mission. Alarmingly, the EU border mission is never located in the vicinity of these events. This might be explained by the fact that the EU border mission coordinates its movements with Azerbaijan in advance (Gavin, Politico, 2023).

In this context, it is clear that Azerbaijan has no genuine interest in concluding a peace treaty with Armenia. The international community’s attention on the war in Ukraine gives Azerbaijan the upper hand in capitalising on the defeat of the Armenian side in the 2020 war by making claims to the South of Armenia, and creating the conditions for the potential ethnic cleansing of the Armenians of Nagorno-Karabakh. Given its diplomatic efforts of the past two years and the deployment of the CFSP mission in Armenia, the question is where does this leave the EU? Should it limit itself to its current mediation efforts, or should it make use of other political and legal instruments at its disposal, including sanctions?

Despite the spearheading of trilateral talks to advance the peace process, the EU’s approach is rooted in its past cautious engagement and its long-standing position of ‘both-side-ism’ (Ghazaryan 2023). In simple terms, the latter viewed both Armenia and Azerbaijan as equal in terms of the causes of the bilateral conflict, but also their intransigence in the attempts to resolve the conflict. Even if one views such perception as justified in the past, following the 2020 Nagorno-Karabakh war this no longer stands scrutiny given the precarious position of Armenia and the Armenians of Nagorno-Karabakh. It is precisely this vulnerable position that Azerbaijan is keen to exploit given its cordial relations with Russia, the only international power with a military presence on the ground (Eurasia Review, 2022). Its position has also been emboldened by a new energy deal concluded between the EU and Azerbaijan in the summer of 2022. The EU’s understandable desire to break away from its dependence on Russian fossil fuels, appears inevitably to push it into the arms of other authoritarian regimes. In its speech to mark the closing of the deal promising the doubling of gas supplies to the EU,  Commission President von der Leyen declared Azerbaijan to be a ‘trustworthy partner’ despite the latter’s political record and threats against Armenia’s territorial integrity.

The blockade of the Nagorno-Karabakh Armenians now affirmed by the establishment of the miliary checkpoint in breach of the ICJ order should not go unnoticed by the EU. The recent gas deal emboldening Azerbaijan also creates significant leverage for the EU which should be used to end the blockade to prevent the ethnic cleansing of Karabakhi Armenians. The war in Ukraine demonstrated the EU’s ability to respond to blatant violations of International Law by deploying a wide range of sanctions and taking a clear stance. Placating the authoritarian regime in Azerbaijan demonstrates that lessons have not been learned from the EU’s previous practice in its Eastern neighbourhood where its placating of Putin’s regime only led to impunity and further aggression. The EU’s partnership and prospects of concluding a new agreement with Azerbaijan should be put on hold unless the latter genuinely engages in the peace process with a view to resolve the conflict rooted in the issue of self-determination of the Armenians of Nagorno-Karabakh. The EU should not shy away from addressing the issue of how to guarantee the safety and rights of Karabakhi Armenians in the context of Azerbaijan’s lack of democratic governance and poor human rights record, as well as its decades-long Armenophobia. In particular, due to its relations with both Armenia and Azerbaijan the EU is well placed to deploy a European peace-keeping contingent given the poor record of the Russian forces on the ground.

Most importantly, the EU’s political, legal and economic weight should be used to take a stance in line with its values when clear breaches of International Law are taking place. Glossing over them to advance its energy interests will only lead to a new painful episode at the EU’s borders which it could have possibly prevented.