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Court of the Eurasian Economic Union

Legal basis: Annex 2 to the Treaty on the Eurasian Economic Union: Statute of the Court of the Eurasian Economic Union (EAEU) (Signed in Astana, May 29, 2014)

  • Composition/structure:

Similarities:

  • Both, Court of the EAEU and the General Court of the EU choose 2 judges per member state, but the composition of the Court of Justice is different: 1 judge from each member state + 11 Advocates General.

  • Judges must have high moral standards, be highly qualified specialists in the field of international and domestic law, and, as a rule, must meet the requirements for judges of the highest judicial bodies of the Member States.

  • Judges are appointed by a panel that consists of people chosen from the member states.

(Eurasian Economic Union, 2014; Shuibhne, 2017, p. 165)

Differences:

  • While the Court of the EAEU is a single judicial body, the CJEU divides into two parts, which are (1) the European Court of Justice (ECJ) and (2) the General Court.

  • While in the Court of the EAEU judges serve for 9 years, judges of the Court of Justice are appointed for 6 years and there is also the partial replacement of judges every 3 years.

(Eurasian Economic Union, 2014; Shuibhne, 2017, p. 165)

  • Key functions/jurisdiction: according to the Annex 2, the main aim of the Court of the EAEU is to ensure a unified application of international treaties within the Union, international treaties of the Union with a third party and decisions of the organs of the Union (Eurasian Economic Union, 2014).

The procedural jurisdictions in the Court of the EAEU and CJEU are the same in both, direct and indirect actions. To be more precise, while the Court of Justice considers cases initiated by member states and EU institutions and the General Court considers cases initiated by a natural or legal person, the Court of the EAEU considers both these cases (Eurasian Economic Union, 2014, p. 10-11). Regarding the indirect actions, the preliminary rulings procedure no more exists in the Court of the EAEU (after the introduction of the Astana Treaty) (Eurasian Economic Union, 2014, p. 10-11; Shuibhne, 2017, p. 167-168). Meanwhile, the nature of the substantive jurisdictions in both Unions is also the same: the subject matter of the court rulings is related only to the treaties and laws of the Unions (Eurasian Economic Union, 2014, p. 8-9; Shuibhne, 2017, p. 167-168).

  • Decision-making rules: The Court of the EAEU adopts:

  • decrees (постановления): adopted within the period established by Standing Order (Регламент)

  • decisions (решения): issued within 90 days from the date of the receipt of application but they can be extended in the number of cases mentioned in the Standing Order (Регламент)

  • recommendations/advisory opinions (консультативные заключения): are provided on the application for clarification

(Eurasian Economic Union, 2014)

Inter-institutional dynamics and accountability: Although the Court of the EAEU initially could hear appeals on other institutions of the Union and could resolve issues between member states, with the introduction of the Astana Treaty the power of the Court has lessened. Now, the Court “does not change and/or invalidate any norms of the law of the Union in force and the

legislation of the member states, nor create new ones” (Dravneva & Wolczuk, 2017, p. 16). The Court of the EAEU has problems with accountability and these problems have worsened after the implementation of “weak formal commitments” of the Astana Treaty (Dravneva & Wolczuk, 2017, p. 13).

Part Two:

  • Research question

To what extent is the EAEU Court activist?

  • Literature review

The current literature on the EAEU critics the power and functions of the EAEU Court. Although the EAEU aimed to recreate the model of the EU Court, however, Russia tried to implement a lot of changes in the Statute of the EAEU Court, so that the EAEU Court does not have as much power as the EU Court has (Dravneva & Wolczuk, 2017, p. 16). According to Ispolinov (2016), the member states were afraid that the Court might become too powerful and, therefore, limited its jurisdictions (p. 162). Compared with the courts of inter-governmental unions operating today, the jurisdiction of the EAEU Court is indeed severely limited and this can become a serious obstacle to the formation of the rule of law of the Eurasian Union (Ispolinov, 2016, p. 161). The jurisdiction of the current EAEU Court is comparable to the jurisdiction of the Court of the European Coal and Steel Association, which was in force from 1953 to 1957 (Ispolinov, 2016, p. 161). The already limited power of the EAEU Court has weakened significantly with the introduction of the Astana Treaty and now the Court cannot “change and/or invalidate any norms of the law of the Union in force and the legislation of the member states, nor create new ones” (Dravneva & Wolczuk, 2017, p. 16). More to say, there is no more possibility for the EAEU Commission to file a lawsuit against the member states.

Meanwhile, the direct actions initiated by humans are also limited. Firstly, while in the General Court of the EU direct actions can be initiated by a natural person or legal person, the direct actions to the EAEU Court can be applied only by legal entities and individual entrepreneurs and only after paying the EAEU Court fee, which is an extremely rare restriction in the global practice (Ispolinov, 2016, p. 158). Secondly, these legal entities or entrepreneurs are allowed to appeal only those actions (inactions) of the Commission that directly affects the rights and legitimate interests of the applicants; claims for damages were excluded from the Court’s jurisdictions (Ispolinov, 2016, p. 158).

According to Karliuk (2015), the EAEU Court lacks one of the most important functions that are present in the EU Court – preliminary ruling procedure (p. 16). The preliminary ruling procedure builds a cooperative relationship between national courts and a court of a union (Gregor, Kupka, & Marušáková, 2018, p. 4). By appealing to the higher court, national courts have an opportunity to clarify ambiguous parts of a union’s laws (Karliuk, 2015, p. 16). This is important since it eventually helps to create a single interpretation and practice of union’s laws (Karliuk, 2015, p. 16). However, since the EAEU does not have this function, it fails in enforcing the uniform law applicability. This is part of the reason why the EAEU is not as integrated as the EU is (Gregor, Kupka, & Marušáková, 2018, p. 4).

Overall, the founders of the EAEU, Russia, Belarus, and Kazakhstan, knew that the risks associated with the emergence of a strong international court should be foreseen and, therefore, they minimized the power of the EAEU Court in advance, based on the fact that any created court is the most vulnerable at the very beginning (Dravneva & Wolczuk, 2017, p. 16). In this regard, the extensive set of restrictions used by states in creating the EAEU Court shows their understanding of these risks and their desire to exclude them as much as possible (Ispolinov, 2016, p. 158). This explains the limited jurisdictions and weak organization of the EAEU Court which differs not only from the EU Court but also with its predecessor, the EurAsEC Court (Ispolinov, 2016, p. 158).

  • Analytical framework

It is not a secret that the EAEU founders wanted to recreate an institution which would be like the EU. Because of this, the majority of the EU Court’s provisions and regulations were adopted by the EAEU Court and one of such regulations is the practice of judicial activism (Dravneva & Wolczuk, 2017, p. 5). Indeed, according to Article 79 of the Regulations of the EAEU Court, the EAEU judges have the right to declare their “special opinion” in case of the disagreement with the Court’s decisions or individual provisions (Supreme Eurasian Economic Council, 2014, p. 55). Since the EU Court is considered to be a powerful institution, this is partly because of the high level of judicial activism that is observed there (de Waele & Van der Vleuten, 2010, p. 645). By considering the EU Court as an example of a powerful institution, I will try to analyze the power of the EAEU Court using the analytical framework of judicial activism.

To begin with, judicial activism is a process where judges are allowed to share their personal opinion on public policy (Terpan & Saurugger, 2019, p. 543). Researchers claim that the frequency of judges being activist shows how powerful a court is (de Witte, Muir, & Dawson, 2013, p. 1). According to Terpan & Saurugger (2019), “being an activist court means ‘making’ the law instead of only ‘speaking’ the law” (p. 543). Judicial activism is an important process because it allows courts not merely to solve judicial cases but it allows to be more actively engaged in the political decision-making on a par with other branches (de Witte, Muir, & Dawson, 2013, p. 1). Although the majority of judicial cases are not ambiguous, some of them arouse clashes between political parties with different views because of the ambiguity of this type of cases (de Witte, Muir, & Dawson, 2013, p. 1). In such cases, judicial activism plays a crucial role in resolving these issues.

As practice shows, the frequent practice of judicial activism enlarges court’s power. Since judicial activism allows not merely interpret laws but also to reject them, making the judiciary branch to overtake the functions of executive and legislative branches (Kmiec, 2004, p. 1443). According to the Professor of the University of Berkeley, Keenan Kmiec (2004) there are five indicators of judicial activism: 1) vetoing policy-making decisions of legislative and executive branches, 2) disobeying the precedent, 3) “result-oriented” jurisprudence, 4) not adhering commonly accepted “interpretive methodology”, 5) making own judicial “legislation” (p. 1444). As can be seen from these indicators, the frequent use of judicial activism is surely a sign of a court’s power compared with other inter-institutional branches.

Generally, judicial activism is a tool for resolving power imbalances of an institution: it is “a dialogue between political and legal actors” (de Witte, Muir, & Dawson, 2013, p. 54). As for the ECJ, judicial activism helps to create the system of checks and balances between the Court and the other branches of the EU (de Witte, Muir, & Dawson, 2013, p. 54). However, the situation with judicial activism in the EAEU Court is different.

  • Analysis

Although the EAEU Court allows its judges to share their personal opinion on judicial cases, meaning that the judicial activism is present here, it does not have a lot of weight as it has in the EU. While in the EU the activism of the CJEU judges raises clashes with other branches of the Union, thus, creating the check and balances system where each branch can prevent actions of the other, the CJEU does not take judiciary opinion of its judges into account, instead, they harmonize their actions with the actions of other branches of the EAEU. In this essay, I will argue that the EAEU Court is “nominally” active, meaning that its activity has no real power.

There are several cases on which judges of the EAEU Court shared their personal opinion, meaning that they were judicially active, but the Court did not consider their propositions. On the 10th of March 2020, the EAEU judge from Russia declared his personal opinion regarding the case of LTD “E-Customs” (Chayka, 2020, p. 1). The company claimed that the Decision #113 of the Eurasian Economic Commission, where the Commission introduced changes to commodity nomenclature, does not comply with the International Convention on the Harmonized System for the Description and Coding of Goods and the Treaty of the Eurasian Economic Union (Chayka, 2020, p. 1). However, the Court decided that the consideration of the application of LLC Electronic Customs does not fall within the subjective and substantive competence of the Court (Chayka, 2020, p. 1). In his personal opinion, Chayka claimed that the Court’s decision of not considering the case violates the Statute of the Court. He argues that, according to paragraph 39 of the Statue, the Court must consider cases appealed by business entities, especially if these cases are about the damage done by the Commission's decisions to these entities (Chayka, 2020, p. 1).

However, later at the same day, the Court uploaded a decree where, interestingly, the same judge Chayka with several other judges asserted that the Commission did not violate any conventions and treaties and made the LTD “E-Customs” guilty (Court of the Eurasian Economic Union, 2020, p. 6). The Court declared that the LTD “E-Customs” intentionally incorrectly declared goods to avoid paying the fee and obliged the company to incur criminal liability (Court of the Eurasian Economic Union, 2020, p. 6). Interestingly, that Chayka changed his mind so rapidly within the same day: initially, he argued for the company but then he with the other four judges made the company guilty, saying that Decision #113 of the Commission did not violate any rules of the Union. Since the personal opinion of Chayka was not considered by the Court and the Court continued to support the decisions of the Commission, it seems to suggest that the personal opinion of Chayka was proposed only to “create an image” of the EAEU Court’s activism. Researchers argue that if a Court does not disagree with other inter-institutional branches, as the Commission here, or with the member states, then it cannot be considered as an activist (Terpan & Saurugger, 2019, p. 547). From the given case, it is seen that to avoid any disagreements the Court decided to take the stance of the other inter-institutional branch of the Union, the Commission, despite having the personal opinion of one of the judges not to do so.

Critics might argue that, probably, in this case, the Commission's actions were right, and the Court should take the stance of those who are legally correct. However, most, if not all, personal opinions of the judges are ignored by the Court. Here is another case: on the 13th of February 2020, the judge Tumanyan disagreed with the Court’s ruling on the “Delrus” company (Tumanyan, 2020, p. 1). Earlier, the company was accused by the EAEU Commission in Decision #165, which is the Decision “On violation of the general rules of competition in cross-border markets” (Court of the Eurasian Economic Union, 2020, p. 2). The Commission argued that the two companies of Delrus, located in Russia and Kazakhstan, have a cross-border market of goods (Court of the Eurasian Economic Union, 2020, p. 2).

What Tumanyan was arguing for is that the products made by the Delrus company had two autonomous markets: “LTD Delrus” and “Delrus RK” (Tumanyan, 2020, p. 3-4). Therefore, he believed that the Commission incorrectly determined the geographic boundaries of the Delrus company’s products, and mistakenly concluded that it was cross-border (Tumanyan, 2020, p. 3-4). What the Commission is ignored is two main criteria of a cross-border market: 1) the supply of goods from the territory of one Member State to the territory of another Member State; 2) the supply of goods from the territory of third countries in the territory of two or more member states (Tumanyan, 2020, p. 7). None of these criteria applied to the LTD Delrus and the Delrus RK companies. Nonetheless, the EAEU Court again did not consider the judicial opinion of Tumanyan and insisted that the Commission’s actions were legally correct. As it was with the previously mentioned case, the Court again takes the stance of the Commission, ignoring the personal opinion of Tumanyan, where he insisted that the Commission overlooked the fact that the two companies work autonomously, thus, the competition rules were not violated.

According to the definition of a judicial judgment given by the mentioned before Professor the University of Berkeley, Kmiec (2004) “At the broadest level, judicial activism is any occasion where a court intervenes and strikes down a piece of duly enacted legislation” (p. 1463). In other words, the successful invalidation of law is what defines “real” judicial activism. As can be seen from the cases above, although judges Chayka and Tumanyan showed their judicial activism, their propositions have never been taken into account by the EAEU Court. The fact that Chayka on the same day argued for and then against the LTD “E-Customs” is suspicious. When it comes to Tumanyan, it seems that he provided a solid argument of the fact that the Commission has mistakenly made the Delrus companies guilty, however, still, the Court decided to come in agreement not with one of its judges but with the Commission.

It seems to suggest that, as was written in my literature review, since the founders of the EAEU did not want to create a powerful Court from the beginning, the cases of judicial activism might be “nominal”, meaning that judicial activism exists only in documents without having that level of power that it should have. If we will compare the European Court, the court which was taken as a “role model” for the EAEU Court, we can see that judicial activism of CJEU has “real” power. For instance, in the Ruiz Zambrano case, the EU Court approved its judgment, even though 8 member states, as well as the Commission, had different from the Court interpretation (de Witte, Muir, & Dawson, 2013, p. 3). Meanwhile, what is observed in the EAEU Court is that the Court always adopts legislation that is approved by other inter-institutional branches, such as the Commission. According to (de Witte, Muir, & Dawson, 2013) judicial activism allows branches to disagree with each other, thus creating a working system of checks and balances (p. 5) Since the EAEU Court does not create clashes with other branches, it seems to suggest that what the Union lacks is the inter-institutional disagreement which is important for having checks and balances system.

Overall, it seems to suggest that the EAEU Court is “nominally” activist. Initially, the founders of the Union did not want the Court to powerful and limited its jurisdictions in many directions, therefore, it is clear what are the reasons for the weak power of the EAEU Court.

Reference List:

Chayka, K. (2020). Personal Opinion of Judge Chayka. Minsk: Court of the Eurasian Economic Union. http://courteurasian.org/doc-27453

Court of the Eurasian Economic Union. (2020). Decree on the Termination of Proceedings of the LTD “E-Customs” Case. Minsk: Court of the Eurasian Economic Union. http://courteurasian.org/doc-27483

Court of the Eurasian Economic Union. (2020). The decision on the Delrus and Delrus RK Companies. Minsk: Court of the Eurasian Economic Union. http://courteurasian.org/doc-27153

de Waele, H., & Van der Vleuten, A. (2010). Judicial Activism in the European Court of Justice: The Case of LGBT Rights. Michigan State Journal of International Law, 19(3), 639-666. http://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1060&context=ilr

de Witte, B., Muir, E., & Dawson, M. (Eds.). (2013). Judicial activism at the European Court of Justice. Edward Elgar Publishing.

Dravneva, R. & Wolczuk, K. (2017). The Eurasian Economic Union: Deals, Rules, and the Exercise of Power. London: Chatham House, The Royal Institute of International Affairs

Eurasian Economic Union. (2014). Treaty of the Eurasian Economic Union. Astana: Eurasian Economic Union. http://courteurasian.org/doc-14023

Gregor, J., Kupka, P., & Marušáková, V. (2018). Reference for a preliminary ruling procedure as an (in)effective tool of judicial harmonization of European Union law. Thessaloniki: THEMIS 2018. http://www.ejtn.eu/PageFiles/17294/WR%20-%20TH-2018-3%20-%20CZ.pdf

Ispolinov, A. (2016). Statute of the EAEU Court as a Reflection of Fears and Doubts of the Member States of the Eurasian Economic Union. Journal of the Graduate School of Economics, 4, 152-166. DOI: 10.17323/2072-8166.2016.4.152.166

Karliuk, M. (2015). The Eurasian Economic Union: an EU-like Legal Order in the Post-Soviet Space? Working Paper, National Research University: Higher School of Economics. http://www.academia.edu/download/39024768/53LAW2015.pdf

Kmiec, K. D. (2004). The origin and current meanings of judicial activism. California Law Review, 92, 1441-1478. https://pdfs.semanticscholar.org/c2b3/882e3373344cc662ab0c76ff6b55ba273d29.pdf

Shuibhne, N. (2017). The Court of Justice: European Integration and Judicial Institutions. In D. Hodson and J. Peterson (eds.). Institutions of the European Union. Oxford: Oxford University Press.

Supreme Eurasian Economic Council. (2014). Decision #101: On the Approval of Regulations of the EAEU Court. Moscow: Supreme Eurasian Economic Council.

Terpan, F., & Saurugger, S. (2019). Assessing judicial activism of the CJEU the case of the court’s defense procurement rulings. Journal of European Integration, 41(4), 543-561. DOI: 10.1080/07036337.2018.1537268

Tumanyan, A. (2020). Personal Opinion of Judge Tumanyan. Minsk: Court of the Eurasian Economic Union. http://courteurasian.org/doc-27213

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