Abstract
The coming of age of the EU as a global actor and the proliferation of its activities on the international plane entail that its courts are increasingly faced with complex and politically laden questions pertaining to territorial entities whose international legal status is far from clear. The EU's engagement with Kosovo is a salient example. Due to strong opposition by some Member States, the EU has not recognized Kosovo as an independent State, but it has developed a policy of engagement therewith. However, this pragmatic approach does not resolve the underlying political tensions and legal questions arising from the EU's dealings with non-recognized territorial entities, as Case C-632/20 P Spain v. Commission (Kosovo) attests to. The judgment is significant: (a) for the EU's growing engagement with non-recognized territorial entities since it clarifies the meaning of the concept of ‘third country’ and confirms that such entities may participate in EU agencies; (b) for the EU's engagement with Kosovo – particularly in the light of Kosovo's 2022 bid for EU membership; and (c) more broadly, for answering institutional questions pertaining to third-country participation in EU agencies.
Introduction
The coming of age of the EU as a global actor and the proliferation of its activities on the international plane entail that its courts are increasingly faced with complex and politically laden questions pertaining to territorial entities whose international legal status is far from clear. 1 The EU's engagement with Kosovo is a salient example. Due to strong opposition by some Member States, the EU has not recognized Kosovo as an independent State, but it has developed a policy of engagement therewith. 2 However, this pragmatic approach does not resolve the underlying political tensions and legal questions arising from the EU's dealings with non-recognized territorial entities, as Case C-632/20 P Spain v. Commission (Kosovo) attests to. 3 The case concerns the participation of regulatory authorities of third countries in an EU agency, namely the Body of European Regulators for Electronic Communications (BEREC). More particularly, Article 35(2) of the BEREC Regulation 4 provides the possibility of participation of National Regulatory Authorities (NRAs) of ‘third countries’ in BEREC. The case originates from an action for annulment brought by Spain against the 2019 Commission decision on the participation of the NRA of Kosovo in BEREC 5 on the grounds, inter alia, that the EU has not recognized Kosovo as an independent State and thus Kosovo does not constitute a ‘third country’ within the meaning of Article 35 of the BEREC Regulation. 6
On 17 January 2023, the Court of Justice of the European Union delivered its judgment, ruling that notwithstanding the EU's non-recognition of Kosovo as a State, Kosovo may participate in BEREC. 7 The judgment is significant: (a) for the EU's growing engagement with non-recognized territorial entities since it clarifies the meaning of the concept of ‘third country’ and confirms that such entities may participate in EU agencies; (b) for the EU's engagement with Kosovo – particularly in the light of Kosovo's 2022 bid for EU membership; and (c) more broadly, for answering institutional questions pertaining to third-country participation in EU agencies.
Legal and factual background
The case is an appeal against the General Court's (GC) judgment of 23 September 2020. 8 At first instance, 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”’. 9 Spain appealed the GC's judgment. The 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) 10 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 contested decision on the participation of the NRA of Kosovo in BEREC.
Advocate General (AG) Kokott delivered her Opinion on 16 June 2022. 11 In relation to the first ground of appeal, 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’ was key to the dispute. Although the AG upheld the distinction between ‘third States’ and ‘third countries’ propounded by the GC, she clarified that this conceptual distinction does not follow from the wording of the Treaties (as per the GC's line of argumentation) but rather from an interpretation of the Regulation itself. 12 More particularly, the AG argued that a distinction is not made between ‘third States’ and ‘third countries’ 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. 13
Against this backdrop, the AG turned next to the interpretation of the concept of ‘third country’ in Article 35 of the BEREC Regulation. Since the wording of the provision does not clarify whether a conceptual distinction exists between the two terms or whether they are used interchangeably, the AG opined that recourse should be had to its regulatory context, its origins, its spirit and purpose as well as to relevant international law considerations. 14 As for the regulatory context of the provision, 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. Article 111 of the SAA provides for cooperation 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 was logical to conclude that the provision also covers the arrangement with Kosovo. 15 The drafting history of the provision and the spirit and purpose of Article 35 (2) of the BEREC Regulation further buttressed that conclusion. 16 This broad interpretation of the concept of ‘third country’ encompassing entities that are not recognized as States was further substantiated with reference to international law. 17 The AG highlighted that in international legal practice the term has been employed in order to admit different territorial entities to international institutions. 18 The international practice of the Union itself shows that it has entered into legally binding agreements with entities that it has not recognized as States. 19
By way of contrast to the GC, however, the AG opined 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 suggested that the judgment under appeal should be set aside. 20
The reasoning of the Court
The CJEU largely followed the AG's Opinion and highlighted the impossibility of determining the meaning of the concept of ‘third country’ on the basis of a literal interpretation of the Treaties. 21
Noting that in some language version of the Treaties the terms are actually used synonymously, 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. 22 Since the GC's finding that the concept of ‘third countries’ within the meaning of Article 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. 23
Against this backdrop, the CJEU continued by exploring whether the term ‘third countries’ in Article 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’. 24 As far as the latter is concerned, the Court referred to the ICJ's Advisory Opinion on the Kosovo Declaration of Independence 25 as proof that Kosovo's unilateral declaration of independence did not violate international law, UN Security Council Resolution 1244(1999), or the applicable constitutional framework. 26 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. 27
The Court turned next to the interpretation of the concept of ‘third country’ in the BEREC Regulation. It underscored the fact that the Union has entered several international agreements with Kosovo, ‘thus recognizing its capacity to conclude such agreements’. 28 In line with the AG, the Court highlighted the similarity in wording and context between Article 111 of the EU-Kosovo SAA and other comparable provisions contained in other SAAs with countries of the Western Balkans – which have served as the requisite legal bases for the participation of the NRAs of those countries in the activities of BEREC. Thus, it concluded that Article 111 of the EU-Kosovo SAA must have also been adopted for the purpose of allowing the participation of the NRA of Kosovo in BEREC. 29 The Court also rejected Spain's claim to the effect that the Commission's decision concerning the participation of the NRA of Kosovo in BEREC constitutes implicit recognition of Kosovo's Statehood. 30 It stressed that the decision expressly states that the designation ‘Kosovo’ is without prejudice to positions on status. 31
The CJEU also addressed the issue of the Commission's institutional competence to decide on the issue of the participation of Kosovo in BEREC. It found that the decision at bar could not be taken by virtue of the Commission's executive or external representation functions on the basis of Article 17 TEU. 32 According to the BEREC Regulation, it is for the Board of Regulators and the Director of BEREC to authorize the conclusion of working arrangements with the NRAs of third countries, with the Commission merely having a supervisory role in this context. 33 Any other interpretation would be incompatible with BEREC's independence and the supervisory function envisaged for the Commission under the Regulation. 34 On this basis, the Court set the judgment under appeal aside and annulled the relevant decision – while maintaining its effects until its replacement by a new act. 35
Comments
This note 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, due to the opposition of Kosovo's claim to Statehood by some Member States, 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. 36 The CJEU (wisely) refrained from delving into questions of Statehood and recognition, which are closely but not directly linked to the dispute at bar. At the same time, the interpretative methodology followed in the judgment is implicit – rather than explicit - and relevant international legal considerations play a limited role in the Court's line of argumentation, thus leaving something to be desired in terms of reasoning.
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 37 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. By way of contrast, the AG clearly articulated the framework of enquiry into the meaning of the term at hand in the Regulation (by having recourse to its regulatory context, origin, purpose as well as relevant international legal considerations). 38 Although the judgment evidences engagement with the traditional methods of interpretation (textual, systematic and teleological), the fact that the Court, unlike the AG, refrained from explicitly setting out its hermeneutical methodology raises questions. Although in EU law, a provision similar to the general rule of interpretation enshrined in Article 31 of the Vienna Convention on the Law of Treaties 39 does not exist, it is settled case law that ‘in interpreting a provision of [Union] law it is necessary to consider not only its wording, but also the context in which it occurs and the objects of the rules of which it is part’ 40 – taking into account ‘the characteristic features of [Union] law and the particular difficulties to which its interpretation gives rise’. 41 It is widely accepted that this interpretative scheme closely follows the Vienna rule of interpretation, 42 which envisages interpretation as a holistic process where the interpretative outcome results from the combined interaction of all elements contained therein (namely text, context and object and purpose). 43 At the same time, it has been stressed that the Court's practice does not attest to the existence of a coherent and consistent interpretative methodology. 44 Rather, the case law points to a flexible interpretative approach and corroborates the conclusion that the CJEU ‘frequently operates outside the interpretative freedom’ afforded by the Vienna rule. 45 The Court's lack of methodological clarity has been criticized in the literature. 46 Indeed, methodological rigour, particularly in the context of interpretation, is linked to legal certainty, predictability and, ultimately, the credibility of a judicial system. 47 It is important to stress here that, in the 2020 PSPP ruling, the thrust of the German Constitutional Court's scathing critique of the CJEU concerned the latter's interpretative methodology. 48 In this light, it is regrettable that the Court did not follow the example of the AG and did not explain at all in its methodology of interpreting the term ‘third country’.
A few words about the effet utile argument advanced by the Court are also in order here. First, as seen above, the Court relied on the purpose of ‘ensuring the effectiveness’ of Article 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 emphasizes, or even prioritizes, a teleological approach when the interpreter is confronted with equally plausible interpretative choices.
Secondly, although it is not immediately clear how a broad interpretation of the provision at hand would ensure its effectiveness, things change once the lens of effectiveness is recalibrated. What the Court seems to be suggesting here is that such a broad interpretation 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. This echoes a point made earlier by the GC; the GC argued that not accepting the possibility of the Union concluding agreements with territorial entities other than States ‘would be to create a legal vacuum in the European Union's external relations’. 49 This, however, entails giving too large a scope to the principle of effectiveness compared to what it currently has. In the context of interpretation of EU law, the principle of effectiveness dictates that where a provision of EU law is open to different interpretations, preference must be given to the one which ensures that the provision retains its effectiveness. 50 Considerations of effectiveness of the type asserted here would entail protecting the effectiveness of the EU external action – as opposed to the full effect of EU law. This approach is problematic since it would insert in the interpretative process a telos that goes well beyond the combined application of all methods of interpretation as well as policy considerations, namely how to ensure the functionality of the Union as an international actor.
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 Article 35(2) of the BEREC Regulation should be interpreted as covering territorial entities that have not been recognized as ‘States’ by the Union.
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 relation’. 51 Both the GC 52 and the AG 53 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 the Palestine Liberation Organisation, Hong Kong and Macao – 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’ 54 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). 55 Furthermore, the decision of the International Law Commission (ILC) to limit the Vienna Convention on the Law of Treaties (VCLT) to treaties between States implicitly acknowledged this. Article 3 VCLT excludes from its scope international agreements involving ‘other subjects of international law’ – thereby confirming that although such agreements do not fall within the scope of the VCLT, they do exist as a matter of international law. 56 The fact that treaty-making capacity does not necessarily equate Statehood is further acknowledged in the Summary of Practice of the UN Secretary-General when acting as depository of treaties. 57 As Vidmar put it: ‘Statehood is a matter of substantive law, while participation in a treaty is a procedural matter.’ 58 The Court of Justice's own case law also attests to this ‘spectral’ understanding of international legal personality. In Psagot, the Court of Justice made a distinction between States, a term ‘referring to a sovereign entity exercising, within its geographical boundaries, the full range of powers, recognized by international law’ and ‘territories’ which, in the context of that particular case, referred to ‘geographical spaces which…have a separate and distinct status…under international law’. 59
Whether a particular entity possesses treaty-making capacity is a matter of recognition; other actors must recognize its treaty-making capacity. 60 Thus, 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. A number of States have recognized Kosovo's treaty-making capacity; Austria, 61 Belgium, Luxembourg 62 and Turkey 63 have concluded international agreements with Kosovo. It is also noteworthy that Kosovo is also a party to treaties with non-recognizing States. For instance, in 2016, Kosovo became a member of the Permanent Court of Arbitration by acceding to the 1907 Convention for the Pacific Settlement of International Disputes. 64 Spain, which is a party to the 1907 Convention, issued a declaration reiterating its position of non-recognition of Kosovo's Statehood and stating that it does not consider itself bound by the Convention vis-à-vis Kosovo. 65 Importantly, Spain did not challenge Kosovo's capacity to enter into international agreements; rather, its objection related to the fact that the Convention is open to States only and that it (Spain) does not recognize Kosovo as a State.
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’ 66 – 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.
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’. 67 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 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. 68
This conclusion is not as straightforward as it may seem. According to Article 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. 69 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 70 – or as Crawford eloquently put it, ‘the sound of one hand clapping’. 71 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’. Contrary to Spain's claim, 72 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. As the CJEU highlighted in the judgment, Article 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’. 73
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. There are 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 74 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 Turkish Republic of Northern Cyprus). 75 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. 76 Some 100 States have recognized Kosovo's claim to Statehood 77 – something which could be viewed as evidence that an obligation to withhold recognition does not exist in this context.
Conclusions
Despite its shortcomings in terms of interpretative methodology and reasoning on the basis of international law, the judgment remains an important one. The Court clarified here 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 accession to the EU remain to be seen – particularly since the question of whether Kosovo constitutes a ‘State’, as Article 49 TEU seems to require, remains open. Furthermore, the judgment underscored the EU's functional approach towards non-recognized entities; lack of official recognition does not prevent the Union to effectively engage with entities whose international legal status remains unclear. At the same time, the Court clarified that this functional approach cannot be equated to implicit recognition. If the case was a calculated move to force the CJEU to pronounce on the issue of Kosovo's Statehood, the Court certainly did not take the bait. Ruling on the issue of Statehood would have significant political ramifications and it would have undermined the EU-brokered efforts to normalize relations between Serbia and Kosovo. A noteworthy development in this respect occurred on 27 February 2023 when Kosovo and Serbia orally agreed on the EU Proposal agreement on the normalization of relations. 78 While the preamble of the agreement highlights that the parties have accepted that they share different views on questions of status, they both undertook to not to ‘block, nor encourage other to block, the other Party's progress in their respective EU path based on their own merits’. 79 While the implementation of this agreement remains to be seen and may be on shaky grounds, particularly in the light of recent events, 80 it constitutes an important milestone on Kosovo's European integration path.
