The Impact of the European Court of Justice on Neighbouring Countries 0198855931, 9780198855934

Citation preview

The Impact of the European Court of Justice on Neighbouring Countries

The Impact of the European Court of Justice on Neighbouring Countries Edited by

A R I E R E IC H HA N S -​W. M IC K L I T Z

1

3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2020 The moral rights of the authors have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2020936739 ISBN 978–​0–​19–​885593–​4 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

List of Figures 4.1 Avenues to the EAEU Court

61

4.2 CJEU citation over the years 2012–​18 by EAEU Court

65

4.3 Citations of CJEU decisions by both EAEU courts according to fields of law (2012–​18)

67

4.4 EAEU: The relative impact of CJEU decisions cited

69

5.1 Switzerland: Hierarchy of domestic law

85

5.2 Switzerland: Judicial architecture

87

5.3 Number of cases where CJEU decisions were cited in Switzerland

106

5.4 Citations of CJEU decisions in Switzerland according to fields of law

107

5.5 Switzerland: Judgments citing CJEU by Act

108

5.6 Switzerland: Legal logic behind CJEU references

110

5.7 Switzerland: Influence of CJEU cases on FSC decisions

112

6.1 CJEU citations by Turkish courts (2003–​18)

129

7.1 CJEU citations by Russian courts 2006–​18

162

7.2 CJEU citations by Russian courts according to fields of law

171

8.1 Reform of the judicial system of Ukraine

186

11.1 Georgia: CJEU citations over the years 1996–​2019

250

12.1 Israel: CJEU citation over the years 1980–​2019

281

12.2 Israel: Citations in which fields of law—​by all tribunals

284

12.3 Israel: Relative impact of the CJEU decisions cited

287

List of Tables A.1 Number of cases where CJEU decisions were cited in Narnia (1960–​2016) (number of citations in brackets)

12

A.2 Citations of CJEU decisions in Narnia according to fields of law (1960–​2016)

13

2.1 The EU’s international agreements with its neighbouring countries

19

2.2 The role of the CJEU in bilateral agreements concluded with neighbouring countries

21

2.3 Role of the CJEU in sectoral agreements concluded by the EU with its neighbouring countries

24

2.4 Different levels of territorial extension in EU law

28

2.5 Conditions giving rise to the Brussels Effect

34

4.1 EAEU: Number of judgments and advisory and dissenting opinions where CJEU decisions were cited (2012–​18) (number of citations in brackets) 64 4.2 EAEU: Citations from CJEU decisions according to fields of law (2012–​18)

66

5.1 Number of cases where CJEU decisions were cited in Switzerland (number of citations in brackets)

105

6.1 Number of cases where CJEU decisions were cited in Turkey (1960–​2016) (number of citations in brackets)

128

6.2 Number of cases where CJEU decisions were cited by Turkish higher courts over time 128 6.3 Turkey: List of cases cited by the Court of Cassation

130

6.4 Turkey: List of cases cited by the Council of State

131

6.5 Citations of CJEU decisions in Turkey according to fields of law (2007–​17)

133

7.1 Cases where CJEU decisions were cited in Russia (2006–​18) (number of citations in brackets)

159

7.2 Citations of CJEU decisions in Russia according to fields of law (2006–​18)

161

8.1 Number of cases where CJEU decisions were cited in Ukraine (2006–​19) (numbers of citations in brackets)

194

8.2 Citations of CJEU decisions in Ukraine according to fields of law (2006–​19)

194

11.1 Number of cases where CJEU decisions were cited in Georgia (1996–​2019) (numbers of citations in brackets)

249

11.2 Georgia: Citations of CJEU decisions according to fields of law (1996–​2019)

250

11.3 Georgia: Citations of CJEU decisions by the Competition Agency according to area of regulation

259

xvi  List of Tables 12.1 CJEC citation by Israeli tribunals (1977–​2019)

277

12.2 In which fields of law do the Israeli tribunals cite?

283

12.3 The most-​cited CJEU cases in Israel

285

14.1 Tunisia: Citation/​decision

338

15.1 Potential impact factors and their actual impact

372

List of Contributors Azar Aliyev, Dr.  LL.M., Associate Professor for International Economic Law and Comparative Law, Martin Luther University Halle-​Wittenberg. Azar focuses his research on international business law, transition of post-​soviet legal systems and international commercial arbtration. He publishes in German, English, Russian and Azerbaijani. He was involved as expert in court and arbitration proceedings in different jurisdictions as well as in UNCTAD, UNCITRAL, GIZ, USAID. He is guest lecturer of Baku State University (Baku, Azerbaijan) and Ural State Law University (Ekaterinburg, Russian Federation). Béligh Elbalti, Associate Professor at the Graduate School of Law and Politics at Osaka University since April 2017. He teaches Japanese law, comparative law and private international law, among other subjects. He holds one LL.M. from Tunisia (2008) and from Japan (2011). He earned his Doctor of Law degree at Kyoto University in 2014. He is the author of articles and case notes, notably in the field of private international law (international jurisdiction, the recognition and enforcement of foreign judgments and choice of law). Gaga Gabrichidze, Professor and Jean Monnet Chair in EU Law at the New Vision University (Tbilisi, Georgia). His research focuses on EU constitutional law, law approximation and migration law. He has written widely on legal issues related to EU-​Georgia relations and is the author of a textbook on the EU law in Georgian language. He is a co-​founder and the President of European Union Studies Association (ECSA Georgia) and a co-​founder and member of the management board of the Association of European Studies for the Caucasus Narine Ghazaryan, Dr. Associate Professor in Law at the University of Nottingham, UK. Her research interests lie in the area of EU international relations law, in particular the EU's relations with its Eastern neighbours. She published a monograph, numerous articles and book chapters on this and other topics.  Paul Kalinichenko, Dr. in International and European Law, professor of Integration and European Law Department of the Kutafin Moscow State Law University, Jean Monnet Chair, Head of European Law Department of the Diplomatic Academy at the Russian Foreign Ministry. His research activities focus on EU external relations law, EU economic law, legal aspects of the EU-​Russia relations. He was engaged as a legal advisor in European law for the Ministry of Education and Science of Russia and for the Eurasian Economic Commission (2009-​2019). Ulaş Karan, Associate Professor of Constitutional Law at Istanbul Bilgi University Faculty of Law. Holds LLM and PhD degrees in human rights law and public law. Author or co-​ author of books, articles, reports and manuals in these areas. A member of the European Network of Legal Experts in Gender Equality and Non-​discrimination  and  Council of Europe Conference of INGOs Expert Council on NGO Law.

xviii  List of Contributors Maksim Karliuk, Deputy Director and Leading Research Fellow at the International BRICS Competition Law and Policy Center, Associate Professor at the Faculty of Law, National Research University Higher School of Economics, Moscow. He holds a PhD in Law from Ghent University and an LLM from the College of Europe, Bruges Campus. His research interests include regulatory frameworks of regional integration, the Eurasian Economic Union, and ethical and legal issues of artificial intelligence. Francesco Maiani, Associate Professor of EU Law at the University of Lausanne. His research interests include EU constitutional law, the law of the relations between the EU and its neighbours, as well as EU and International migration law. He is a member of i.a. the Venice Commission of the Council of Europe, the ODYSSEUS Academic Network and the NCCR “On the Move”” Hans-​W. Micklitz, Finland Distinguished Professor at the University of Helsinki and Professor at the Robert Schuman Centre for Advanced Studies at the European University Institute in Florence. Hans research interests are in European private and European economic law, EU external relations law, transnational law and legal theory. Abdullah Nawafleh, Dr.  Senior Lecturer in Law at Staffordshire University (England). Prior to joining Staffordshire University, he worked as a Legal Research Team Lead at CUBE Global, London, and Assistant Professor of law at Al Ain University of Science and Technology (UAE).  Roman Petrov, Dr.  Professor and Jean Monnet Chair in EU Law, Head of Jean Monnet Centre of Excellence in EU Studies at the National University of Kyiv-​Mohyla Academy, Ukraine.  Max Weber Fellow at the European University Institute in Florence (Italy), visiting fellowships at University of Heidelberg (Germany), University of Oxford (UK), Ghent University (Belgium), Uppsala University (Sweden). His research focuses on EU Law, EU External Relations Law; Approximation and Harmonisation of Legislation in the EU; Legal Aspects of Regional Integration in the Post-​Soviet Area. He provides consultancy to the Parliament, the Constitutional and the Ministry of Justice of Ukraine.   Arie Reich, Professor and former Dean of the Faculty of Law of Bar Ilan University, Israel; Jean Monnet Professor of EU Law & Institutions and incoming Vice Rector of the university. Specializes in International Economic Law and EU Law. Arie has authored over 50 academic books and articles on topics ranging from International Trade Law, Public Procurement Law, European Union Law, International Investment Law, Competition Law and Torts.  Allan Rosas, Dr. Jur., Dr. Jur. h.c., Dr.Pol.Sc. h.c., former Judge at the European Court of Justice (2002-​2019), Principal Legal Adviser (1995-​2001) and Deputy Director-​General (2001-​2002) of the Legal Service of the European Commission; Armfelt Professor of Law, Åbo Akademi University (1981-​1995). Joanne Scott, Professor of European Law  and Co-​Director of the Academy of European Law at the European University Institute in Florence. She teaches and supervises PhD and LLM researchers across a wide range of areas in EU and international law. She is currently on leave from University College London where she has taught since 2005. Joanne’s research interests include EU and international environmental law, including climate change law, as well as EU external relations.

1

Introduction Description of the Research Project Arie Reich and Hans-W. Micklitz

This book aims to explore the external impact of the Court of Justice of the European Union (CJEU); that is, the influence its judgments have outside the borders of the EU, and in particular on the legal systems of countries in the European neighbourhood.1 To that effect, this project has brought together a team of scholars from the countries involved, where each of them was asked to explore, document, and analyse the extent of citing of CJEU judgments in his or her respective country and what influence such judgments have had on their legal systems. The contributions of these scholars cover the legal systems of Armenia—​Narine Ghazaryan (Chapter  9), Azerbaijan—​Azar Aliyev (Chapter  10), Georgia—​Gaga Gabrichidze (Chapter  11), Israel—​Arie Reich (Chapter  12), Jordan—​ Abdullah Nawafleh (Chapter  13), Russia—​ Paul Kalinichenko (Chapter  7), Switzerland—​ Francesco Maiani (Chapter  5), Tunisia—​B éligh Elbalti (Chapter  14), Turkey—​Ulaş Karan (Chapter  6), and the Ukraine—​Roman Petrov (Chapter  8), as well as the Eurasian Economic Union—​Maksim Karliuk (Chapter 4). In addition, the book includes a contribution by the former CJEU Judge Allan Rosas (Chapter 3), whose objective is to discuss the extent of citing by the CJEU of judgments from other courts, and whether such judgments have any influence on the CJEU, in other words, influence going the other way. The book opens with a contribution by Joanne Scott (Chapter  2), where she explores and structures the impact of CJEU case law in enhancing the global reach of EU law and the influence of the Court’s judgments abroad. Arie Reich and Hans Micklitz have laid down the objectives of the research in the introduction and analysed the findings in the conclusion.

1 Similar research could be done in relation to other countries outside the EU, as well, in particular countries that have bilateral agreements with the EU, such as Canada, Mexico, and Singapore. At this point, however, it was decided to limit this research project to countries in the European neighbourhood, for reasons of efficiency and consistency. Arie Reich and Hans-W. Micklitz, Introduction In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0001.

4  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

A.  Closing the Knowledge Gap There is a certain mismatch between theories on the influence of the EU outside its borders and concrete knowledge on whether and to what extent the suggested or theorized impact is of any practical relevance. Perhaps one of the best-​known theories is Anu Bradford’s theory on the so-​called ‘Brussel’s Effect’ where she claims and provides selected evidence that the EU unfolds effects beyond its borders, in particular in competition law, data protection, and food safety.2 The present book intends to further close that knowledge gap with regard to the role and function of the CJEU outside its own borders in the selected countries. The major added value of the book is that it provides evidence on whether CJEU judgments enter the national judicial systems of non-​EU member states at all and if so, how often, in what fields of law, why, and how influential they are. Such questions require a historical perspective, one which takes the development of relations and bilateral agreements between the EU and the countries under consideration into account. In particular, one needs to consider whether such agreements include obligations on legal approximation, whether the neighbouring country has undertaken to adopt parts of the acquis communautaire, the extent of such obligations, and whether and to what extent the CJEU is given a role and function in the bilateral treaties. The influence of the CJEU is being understood as dynamic, increasing or decreasing in line with the changing economic and political interaction between the EU and the country concerned, in dependence on the formal relationship with the EU or independent from that relationship just because the European legal order and the CJEU are taking up sensitive economic, social, and political issues in a transnational perspective. The relationship between the EU and these countries follows the pattern of how the EU is shaping its external relations with its neighbouring countries, from closer ties leading to—​or at least creating expectations of—​membership, to looser ties, where membership is excluded from the beginning. The core of the EU–​non-​EU countries relationship is trade in goods and services. That is why the hypothesis is that the jurisdictions under scrutiny will mostly refer to the CJEU in the fields of trade, competition, and intellectual property rights, and not so much in social rights, which are said to be underdeveloped in the EU. On the other hand, the adoption and integration of the Charter of Fundamental Rights in the Lisbon Treaty has raised the awareness of the role and function of fundamental rights, both in the economic legal order and in the political legal order. Also, the rising global problem of immigration and refugees makes the EU’s experience a valuable 2 Anu Bradford, ‘The Brussels Effect’ (2012) 107 Nw U L Rev 1, where she developed the theory. In her book, The Brussels Effect—​How the European Union Rules the World (OUP 2019), she deepens her theory and provides evidence through a series of case studies in selected countries around the world.

Introduction  5 source of inspiration for neighbouring judiciaries. The book aims to highlight the impact of CJEU judgments in the economic order, in the social order, and even in the political order, based on empirical evidence. This can only be done by finding out whether and to what extent national courts and regulators are referring to CJEU judgments and by understanding the context. There are judgments of the CJEU which have gained fame around the world quite independently of the formal legal relationship of the EU with whatever country in the world. Prominent examples are the Bosman and the Google Spain cases, which have left deep traces in national jurisdictions. This book describes the impact that such judgments have had on some of the neighbouring countries, and explains the mechanisms through which this impact has occurred, despite the absence of formal commitments. By doing so, the book provides additional evidence on the Brussels Effect and its workings. Also, thanks to the diversity of the countries covered in the volume, in terms of their different legal, economic, and political cultures, it will be possible to dig deeper and to ask why a certain kind of case in certain areas of the law is playing a role in some jurisdictions but not in others. More generally, the book tries to answer the question, ‘To what extent is the CJEU an actor in the process of ‘exportation’ of the acquis communautaire?’ The final objective is to rank the degree to which the CJEU is influencing non-​EU jurisdictions according to a common scale.

B.  Methodology The main methodology used in order to analyse the impact of the CJEU on the case law of the non-​EU jurisdictions examined was to run searches in digital databases of judgments and decisions of courts and administrative tribunals of these jurisdictions. The findings were then categorized, analysed, and weighed by the researcher according to uniform criteria developed especially for the project. In order to understand the results and make sure no decisions were missed, some interviews with judges, practitioners, academics, and policy makers have also been conducted. The major difficulty of many empirical research projects results from problems of access to the material one is looking for. Getting access to court cases is already a challenge in the EU itself, as Member States have very different policies with regard to the accessibility of data. Luckily, most of the states under examination had searchable databases, although the range of decisions included in these collections differed from state to state. Once the CJEU citations were found, the researcher had to understand the context in which they appear, why the reference had been brought up, and by whom. In countries with a long-​standing tradition of referring to the CJEU, clusters could be built, around which the type of emerging conflicts could be structured.

6  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Any attempt at comparison and weighing and measuring the influence requires a common ground from which to start. We decided to provide a template which need not slavishly be followed and which required each contributor to provide basic information about the legal system examined. The template is provided as Annex I, and the major features are: 1. a brief description of the relation between the country and the EU, including the agreements in force between them, and to what extent these agreements require approximation of the laws of the country with those of the EU; 2. a brief description of the country’s judiciary, its judicial culture, and to what extent it has the habit of citing foreign judgments; 3. a full account of the extent to which the country’s courts have cited CJEU judgments, how often this has occurred, by which tribunals, in what fields of law, and in which context; 4. an analysis of the extent to which these citations have had an impact on the law of the country—​both its case law and legislation—​and the reasons for this; 5. a normative appraisal of the above findings: to what extent is the situation found to exist satisfactory? If it is not, what could be done to improve it? The impact analysis used a five-​tier evaluation system, whereby for each case an assessment was made of the extent of influence that the CJEU ruling had on the final outcome of the domestic decision. The cases were hence divided into five categories of 1–​5, where 1 stands for ‘No impact at all’ and 5 stands for cases where the CJEU ruling had a decisive influence on the domestic decision. For a more detailed explanation, see Annex I. In addition to examining decisions by courts and administrative tribunals, the researchers were asked to look for CJEU impact on regulation and legislation. This proved to be somewhat more challenging, since regulators seldom divulge all of the factors and sources that influence the rules they decide to promulgate, in particular if the factor is a foreign court with no formal authority in their own jurisdiction. Nevertheless, some influence by the CJEU was found and documented.3 This project was launched in the Spring of 2017, at which time the objectives and methodologies of the research were developed by Arie Reich and Hans-W. Micklitz and a search for suitable contributors was initiated. The compilation of confirmed contributors was finalized in September 2017. Then, detailed instructions

3 See eg the discussion of the Bosman decision and its impact on the regulation of sports in Turkey (Karan, Chapter 6 in this volume, p 115 at 136), Russia (Kalinichenko, Chapter 7 in this volume, p 141 at 165), Azerbaijan (Aliyev, Chapter 10 this volume, p 220 at 239), and Israel (Reich, Chapter 12 in this volume, p 265 at 299), the right of women to retire at the same age as men (Reich, Chapter 12 in this volume, p 265 at 269), the prohibition on excessive pricing by monopolies (Reich, Chapter 12 in this volume, p 265 at 295), and the right to be forgotten (Kalinichenko, Chapter 7, p 141 at 172 and Reich, Chapter 12 in this volume, p 265 at 286).

Introduction  7 were sent out to all of the selected contributors, with a deadline for a first draft in February 2018 (see Annex I). Originally, contributors from four more jurisdictions in the Middle East and North Africa (MENA) region were included in the group (namely, from Algeria, Egypt, Morocco, and the Palestinian Authority), but unfortunately, they left the project at an early stage. The final contributions included one from Brazil, authored by Mario Viola de Azevedo Cunha and Danielle Borges, but in consultation with the publisher it was decided to limit the book to neighbourhood countries, and therefore it was not included in this volume.4 In March 2018, a first workshop was convened at the University of Helsinki, generously supported by the Faculty of Law and the Finland Distinguished Professor Programme. At this workshop, every contributor presented the first draft of their research. This draft received comments and critiques from the participants and the editors, and discussions were held on how to improve the methods of research and presentation of the results. Judge Allan Rosas also presented his paper and delivered his comments on how the European Court of Justice (ECJ) saw its role in relation to non-​EU countries. Following the Helsinki workshop, the contributors sent in their second drafts to the editors and again received detailed suggestions on how to further improve the papers. On 8‒9 October 2018, a final workshop was convened, this time at the European University Institute in Florence, and generously supported by the Finland Distinguished Professor Programme, Bar Ilan University, and the Academy of European Law of the European University Institute. At this workshop, the contributors presented the almost final versions of their papers and received more comments and suggestions. The process of implementing these suggestions continued during the following months, at which time the proposal to publish the research was also prepared and submitted to Oxford University Press. The proposal was accepted in the spring of 2019, after which the contributions underwent language and style editing and updating of data, and the final chapter summarizing and distilling the conclusions was written.

C.  Structure of the Book The first contribution (Chapter  2) is written by Joanne Scott of the European University Institute, and discusses the global reach of EU law and what the potential role of the CJEU could be within the international arrangements the EU has with neighbouring countries, on the one hand, and how the CJEU case law unfolds external reach on the other, through the Brussels Effect, EU extraterritoriality, and territorial extension. Both taken together provide a framework which will be tested 4 This contribution, named ‘The Influence of CJEU Judgments on Brazilian Courts’ is available on SSRN accessed 24 April  2020.

8  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES on the basis of the country reports. Next, Chapter 3, written by Judge Allan Rosas of the EU Court of Justice, provides a perspective from the CJEU bench. Judge Rosas’s chapter discusses the extent to which the CJEU, as well as its Advocates General, pay attention to the case law of both international courts and national courts of third countries. This is done mainly by looking at explicit references to such extraneous sources to be found in CJEU judgments and orders and in opinions of the Advocate General. In the context of references to the European Court of Human Rights (ECtHR) case law contained in Court of Justice judgments, some examples are also given of references to CJEU judgments which can be found in the case law of the Human Rights Court. The core of the book turns around reports on the impact of the CJEU in various jurisdictions. This approach starts with Chapter 4, with an analysis of the Eurasian Economic Union, a supranational economic union comprising Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Russia, and the court system of this union, which was very much modelled after the CJEU. Ten country reports, based on the template described in section B above, follow this contribution. There were various ways in which the book could have been structured, in terms of the order of chapters. After some deliberation, it was decided to group the countries along the line of regions (Continental Europe, Post-​Soviet states, the Middle East and North Africa). This structure recognizes not only the geographical vicinity of the countries in question, but also their common background (such as being formerly part of the Soviet Union, or with a colonial background) and similarities in problems, while also contrasting their respective achievements. Building the structure along the line-​of-​impact criteria from the countries with the strongest to the weakest impact was also contemplated, but this would neglect similarities which result from the particular political circumstances that stand behind the EU and its relationship to these countries. Therefore, this grouping was left for the concluding chapter, where it can be explained with any necessary reservations and nuances. Chapter 15, the concluding chapter, written by the editors, is summarizes the findings of the whole project and draws general conclusions about the extent of the CJEU’s external impact and the dynamics of such influence. By drawing conclusions from all of the country reports through a comparative and macro-​perspective, this chapter is able to distil the insights of the entire project and formulate policy recommendations in light of the EU’s external policy and legal integration objectives vis à vis its neighbourhood. The study also sheds light in general about the dynamics of the use of comparative law by courts in different jurisdictions, and its relative impact. During the three years it took to make the book, we received strong intellectual, technical, and financial support. We would like to thank Lucila de Almeida, Marise Cremona, Pia Letto-​Vanamo, Maaike Voorhoeve, Kinanya Pijl, and Joanne Scott for advice, critique, and help during these years and Christopher Goddard

Introduction  9 for bringing the broad variations of non-​native English into a decent and readable format. Last but not least, we would like to express our gratitude to the Finland Distinguished Professor Programme, Bar Ilan University, and the Academy of European Law at the European University Institute for financing the two conferences associated with the book.

Annex I

Instructions to the Researchers The Influence of CJEU Judgments on Non-​EU Countries A joint research project coordinated by Arie Reich and Hans-W. Micklitz

A.  The Objective of the Research Project This project aims to explore the external impact of the Court of Justice of the European Union (CJEU)1 in terms of the influence its judgments wield outside the borders of the EU and in particular in the European neighbourhood. To that effect, we have brought together a team of scholars from the countries involved where each of them is asked to explore, document, and analyse the extent of citing of CJEU judgments by courts in their respective country and the extent to which such judgments have an influence on these national courts. The scholars will also explore other venues of impact which CJEU judgments or judges may have had on the legal system in their respective country, such as through influence on the legislative process (for instance, as part of approximation of laws) or on legal advice given by state attorneys asked to advise on the meaning of agreements signed with the EU. Together, we would like to understand not only the extent of the influence that the CJEU exercises outside the borders of the EU, but also the dynamics of that influence. What are the factors that drive such influence? Why can we find it in some jurisdictions but not in others? Why in some fields of law but not in others? To what extent is the CJEU an actor in the process of ‘exportation’ of the acquis communautaire?

B. Instructions to Contributors The following are some instructions that will help you plan your research and structure your contribution according to the objective of the research project. While we acknowledge that each legal system is different and may have distinct features, and that every legal scholar has their own approach to legal research and writing, it is important that all of the research employs similar methodologies and complies with common standards, so as to make this endeavour into one cohesive research project. 1 Please note that this research relates to the Court of Justice of the European Union (seated in Luxembourg) and not to the European Court of Human Rights (seated in Strasbourg).

Annex I: Instructions to the Researchers  11 Only if we have all asked the same questions and employed the same methodologies to answer them can our findings for each of the jurisdictions be compared to each other and present a clear picture and valid answers on our research questions.

1.  Introduction: main features of the country and its judiciary Each author is requested to provide a basic description of the features of the jurisdiction being studied that can help us better understand the findings that will be presented in the upcoming sections. Relevant questions are: • Basic features of the legal system studied: How did it develop? What are the cultural and historical origins? What were the foreign influences on its development? Is it common law/​civil law/​Soviet law/​mixed system? • Relations with the European Union:  is there an agreement that includes an ‘approximation-​of-​laws’ clause, or the like? How extensive is it? How has it been implemented? Does it impose any obligation on the judiciary? • What is the structure and function of the judiciary? Who are the judges, and how are they appointed? Where have they been educated, and which languages do they command? Do the judges have legal assistants (such as domestic and/​or foreign articling students (stagiares), legal clerks, legal research departments in the court). • To what extent do judges in this country use precedents and what is the status of precedents? What are the techniques of judicial reasoning? Are there dissenting or concurring opinions? • What is the extent of citing foreign and international law in general (not just the CJEU) in the judiciary being studied? Which foreign legal systems and judgments are cited more and which less? Why? Are there any extra-​judicial speeches by judges from this country that can shed light on these questions? Do judges read or cite legal academic writings that could also be a source to learn about relevant foreign or international law? • Is there any known interaction between judges of the country studied and judges or other representatives of the CJEU (meetings, conferences, correspondence etc)? Do they have interaction with other foreign judges?

2.  Citation of CJEU decisions by the country’s judges In this section, the author will present their findings on the extent of citation of CJEU decisions in the country’s judicial and quasi-​judicial decisions.2 It is important that 2 By ‘quasi-​judicial’ decisions, we mean published decisions by official tribunals that exercise authority over parties, similar to that of regular courts, and whose decisions are binding. Such tribunals could include

12  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES the findings are presented clearly both quantitatively and qualitatively and in a uniform manner, so that the findings from the various jurisdictions can be compared, and so that they can serve as a basis for further research by the global academic community. In order to do so, you need to present the following quantitative data: • Presentation of the database where you have performed your search: Which courts and tribunals are included in it and which are not? Which decisions of these courts and tribunals are included in the database and which are not? If the selection of decisions that are published is man-​made, what are the selection criteria? Which time period is covered by the decisions that are included in the database (ie from which years are the decisions)?3 Please indicate if it is a digital database. How many decisions are included in the whole database?4 • Presentation of quantitative results: How many citations of CJEU decisions did you find in the database? In how many court decisions?5 Who were the courts or tribunals that cited the CJEU? When did they cite the CJEU? In which fields of law? How many of these citations were in majority opinions and how many in minority opinions? Tables A.1 and A.2 are examples of some charts that you may want to use (as is, or in an amended form) to present your findings:6 Table A.1  Number of cases where CJEU decisions were cited in Narnia (1960–​2016) (number of citations in brackets) Period

1960–​76

1977–​86

1987–​96

1997–2​ 006 2007–​16

Total

Supreme Court

1 (3)

3 (7)

4 (8)

6 (10)

8 (13)

22 (41)

District court

2 (5)

4 (5)

6 (9)

8 (13)

11 (19)

31 (51)

Magistrates’ court

0

2 (2)

8 (16)

11 (21)

12 (18)

33 (57)

Labour court

4 (7)

6 (10)

8 (12)

14 (28)

10 (14)

42 (71)

Other tribunals

1 (1)

5 (12)

9 (15)

18 (28)

13 (13)

46 (69)

administrative tribunals, such as competition tribunals, trade remedies tribunals, refugee tribunals, social security appeals tribunals etc, or other governmental authorities with similar powers and functions. 3 We leave it to the author to decide what time period to choose, recognizing that there may be many practical considerations, differing from country to country, that dictate this choice. However, we ask the author to explain in the text (or in a footnote) why this period was chosen and what were the circumstances that influenced this decision. 4 This will help the reader get an idea on how common citation of CJEU decisions is within the jurisdiction in question. For instance, if you have found 52 decisions citing CJEU decisions in a database including 10,000 court decisions, it is different from a case where you have found the same number of decisions citing the CJEU, in a database including 400,000 court decisions. 5 Assuming that one judgment could cite the same CJEU case several times, the second number is likely to be lower than the first number. 6 This is just a suggestion. Each author can choose if and how to design his or her charts in order to present the findings in the best and clearest way.

Annex I: Instructions to the Researchers  13 Table A.2  Citations of CJEU decisions in Narnia according to fields of law (1960–​2016) Fundamental Labour Immigration Intellectual Competition Other rights and law property law fields social rights Supreme Court

6

3

2

4

5

2

District court

2

6

4

6

6

7

Magistrates’ 3 court

5

11

4

5

5

Labour court

4

38

0

0

0

0

Other tribunals

3

4

18

0

16

5

Important: we are aware that in several jurisdictions there are very few citations from the CJEU. For those jurisdictions, there may be no point in preparing tables such as these, so the authors can instead present the findings in the way they find most appropriate. • Qualitative presentation of the results: What is the impact of CJEU decisions on courts and tribunals in the jurisdiction in question? In which fields of law is the impact felt more than in others? What was the role played by CJEU precedents in the decisions where they were cited? Did the citing tribunal view the precedent as binding (probably not, except perhaps in countries with very strong approximation commitments), or only as sources of inspiration or of persuasive authority? Did the citing tribunal follow the CJEU precedent in its ruling, or depart from it (for instance, ‘for a different interpretation, see . . . ’)? Was the precedent brought only as ‘an afterthought’, to support a conclusion to which the judge arrived at through different means?7 Was it part of the majority or minority opinion? Perhaps one can find evidence from extra-​judicial speeches by the judges (eg lectures, articles, or interviews) that can shed light on the judges’ thought process and on whether they are influenced by CJEU case law.

7 We realize that it is often difficult to know whether a judge was influenced by a precedent, or had already made up their mind and was only looking for support in foreign precedents. But sometimes one can find traces of such influence, and have reasons to believe, based on the text of the decision, that a CJEU precedent had a decisive influence over the judge. For instance, when a precedent appears at the beginning of a discussion, is described at length, including its reasoning, and when the judge repeats the same reasoning to support their own conclusion, one would be inclined to conclude that the CJEU decision has had a decisive influence on the case.

14  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES • In order to try to measure the extent of the influence the CJEU citation had, you may use the following coding system of 1 to 5 based on the following criteria: ‘1’—​‘Not at all’. This refers to a situation where the CJEU case did not have any impact on the final outcome, for instance because the national court decided not to adopt the CJEU’s approach, or because the CJEU ruling was not relevant to the issue at hand. ‘2’—​‘Marginally’. This refers to where the CJEU case(s) had only a marginal impact on the final ruling, for instance because it was cited in relation to a peripheral issue or as a general background, or where the CJEU case was cited in a dissenting opinion which was not adopted by the majority. ‘3’—​‘Partially’. This refers to a situation where there is some correlation between the CJEU case(s) and the final ruling of the national court, but only to a partial degree, and where it seems that the CJEU rulings did not play a central role in leading the court to its final ruling, for instance because many other legal sources supported this final ruling. ‘4’—​‘Significantly’. This refers to where there is much correlation between the CJEU case(s) and the final ruling of the national court, and it seems that this case was one of the legal sources that led the court to its ruling. ‘5’—​‘Decisively’. This refers to a situation where there is much correlation between the CJEU case(s) and the final ruling of the national court, and it appears that the CJEU case(s) had a decisive influence on the court’s ruling.

3.  CJEU influence on other branches of government and on legislation In this section, the authors will present their findings on whether the CJEU has influenced other branches of government (besides the judiciary), such as through influence on the legislative process (for instance, as part of an approximation of laws process) or on legal advice given by state attorneys asked to advise on the meaning of agreements signed with the EU. Sources of information for this section could be interviews with legal advisors and regulators, newspaper stories, academic literature, minutes (protocols) of legislative bodies or law reform commissions and committees, official explanations for new legislative initiatives, etc.

4.  Analysis of the results: what are the explanations for these results? In this section, the author will summarize the findings and discuss the reasons for them. If the findings show a decisive influence of the CJEU in certain fields of law,

Annex I: Instructions to the Researchers  15 the author will try to explain the reasons for this influence and the dynamics that brought it about. Why in these fields and not in others? Why in this country, when we know that in some other countries there is no such influence? Is it connected to international commitments towards the EU (of legal approximation)? Who are the ‘agents’ of this influence? Is it connected to the lawyers that appear before the courts? Or the judges themselves? Or their legal assistants? Or legal advisors to the Government? Or foreign experts brought in to draft new laws? Is this influence of the CJEU different, quantitatively or qualitatively, from that of other foreign courts and their precedents on the judiciary being investigated? If the findings show little or no influence, the author will try to explain the reasons for this. Is it language barriers or a different educational background that causes it? Such explanations should, to the extent possible, be verified. Are there no (Supreme Court or other courts’) judges who can read and understand any of the EU languages (CJEU decisions are published in all of the twenty-​four official languages of the EU)? Could the educational background of most of the judges explain your finding? Sometimes, judges who are not comfortable with looking for precedents in other legal systems use legal assistants or student trainees (stagiaires) from their own country or from abroad, who are better versed in foreign systems—​ is this available in this country? Could the explanation for the lack of citing be ideology (such as, ‘I don’t agree with the values that are at the foundations of certain foreign legal systems, and therefore I won’t cite them’, or something like that.) Similar arguments are sometimes raised in the United States. This needs to be verified somehow. Is it connected to a certain state of mind or judicial tradition in the country (‘We don’t quote foreign precedents’)? The author would need to compare this lack of CJEU citation to the citation patterns of other foreign courts. If the judges cite other foreign courts more often, then an explanation needs to be provided for the difference. The explanations in this section will necessarily be connected with the features of the judiciary and legal system of the country examined as described in section A of the article (ie in the ‘Introduction: Main Features of the Country and Its Judiciary’).

2

The External Influence of the Court of Justice of the European Union Joanne Scott*

A.  Introduction There has been considerable interest over recent years in the extraterritorial reach and effects of EU law. This volume addresses that theme, while focusing on the external effects of rulings of the Court of Justice of the European Union (CJEU). It is specifically concerned with the impact of these rulings in countries surrounding the EU, including Russia, Switzerland, and Turkey; together with countries in Central Asia,1 and those forming part of the EU’s Eastern and Euro–​Mediterranean Partnerships.2 For the purpose of the discussion in this chapter, these countries are labelled as the EU’s neighbouring countries even though many of these are not formally part of the ‘European Neighbourhood Policy’ (ENP).3 The main focus of the chapters in this volume is on the extent to which the CJEU has been cited in courts in the EU’s neighbouring countries and on the reasons for this. To a lesser extent, the chapters are also concerned to identify the influence wielded by the CJEU on regulation in the third countries in question. This chapter, by contrast, explores aspects of CJEU case law that highlight the role that this Court has played in enhancing both the global reach of EU law and the influence of its own judgments abroad. It addresses two main themes.

* Thank you to the editors of this volume for their helpful comments on an earlier draft of this chapter. 1 Kazakhstan, Kyrgyz Republic, Tajikistan, Turkmenistan, and Uzbekistan. 2 The Eastern Partnership extends to Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine. The Euro-​Mediterranean Partnership includes Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestine, Syria, Tunisia, and Turkey. 3 The ENP governs the EU’s relations with sixteen countries:  Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Palestine, Syria, and Tunisia to the South and Armenia, Azerbaijan, Belarus, Georgia, Moldova, and the Ukraine to the East. Russia takes part in cross-​border cooperation activities under the ENP but does not form part of it. The agreement with the Palestinian Authority is an interim Association Agreement. There are no chapters on countries in the Western Balkans (Albania, Bosnia and Herzegovina, the Republic of North Macedonia, Kosovo, Montenegro, and Serbia), though these countries are mentioned in this chapter in the context of the European Common Aviation Area Agreement. Joanne Scott, The External Influence of the Court of Justice of the European Union In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0002.

THE EXTERNAL INFLUENCE OF THE CJEU  17 The first theme is concerned with the CJEU’s contribution in shaping the institutional arrangements established by international agreements concluded by the EU with its neighbouring countries, particularly as regards its own role therein. As will be seen, the CJEU has sought successfully to enhance its own role and interpretative authority within the framework of these agreements. The chapter argues that in relation to the EU’s neighbouring countries, including those which make up the European Economic Area (EEA),4 the CJEU has emerged as an agent of its own authority by jealously guarding its interpretative supremacy as well as the autonomy of EU law. The second theme is concerned with CJEU case law interpreting and upholding the validity of ‘global reach’ EU law. The concept of the ‘global reach’ of EU law includes EU law which is extraterritorial or which gives rise to ‘territorial extension’.5 It also covers EU legislation which serves as a catalyst for the ‘Brussels Effect’.6 It is argued that the CJEU has enhanced the external influence of EU law by interpreting broadly and upholding the lawfulness of the global reach of EU law. Taking these two themes together, it is clear that there are several pathways to EU and CJEU influence in third countries. In some areas of law, more than one pathway will be accessible at the same time. In these areas, it can be especially difficult to unpick the causal pathways through which EU law wields influence in third countries. We see this in relation to competition law, for example. This policy domain both forms the subject matter of approximation clauses contained in international agreements and enjoys extraterritorial reach. The CJEU’s influence in this domain may therefore be enhanced both by the Court’s interpretation of EU laws that form the subject matter of approximation clauses, and as a consequence of the Court’s jurisprudence upholding the lawfulness of extending the extraterritorial reach of EU competition law. An appreciation of the different mechanisms that facilitate the extraterritorial influence of EU law can assist in making sense of why certain CJEU judgments are so prominent in the case law of third-​country courts. The CJEU’s external influence can sometimes, though not always, be traced to approximation clauses in international agreements and/​or to global reach EU law. In view of this, the present chapter steps back from the fascinating detail included in the country case studies that follow, and analyses more systematically the routes to CJEU influence abroad. Section B considers the role that is conferred on the CJEU by international agreements concluded between the EU and its neighbouring countries and highlights the contribution that the CJEU has made to enhancing its own authority within the framework of these agreements. Section C then provides an overview

4 The Agreement on the European Economic Area [1994] OJ L1/​3 (EEA Agreement). The non-​EU EEA/​European Free Trade Association (EFTA) states are Iceland, Liechtenstein, and Norway. 5 Joanne Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 Am J Comp L 87. 6 Anu Bradford, ‘The Brussels Effect’ (2015) 107 Nw U L Rev 1.

18  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES of the unilateral mechanisms which serve to extend the global reach of EU law, including extraterritoriality, territorial extension, and the Brussels Effect, as well as highlighting the permissive attitude that the CJEU has adopted when confronted with examples of global reach EU law.

B.  The Role of the CJEU in International Agreements Concluded by the EU with Neighbouring Countries The discussion in this section unfolds in two stages. It first explores the varying role of the CJEU in international agreements concluded between the EU and its neighbouring countries, including the European Economic Area Agreement (EEA Agreement), bilateral agreements, and sectoral agreements in the area of international aviation. Having done so, it highlights the role played by the CJEU in enhancing its own interpretative authority within these agreements.

1.  The role of the CJEU in international agreements with neighbouring countries The EU has concluded a wide range of international agreements with its neighbouring countries and, as the chapters in this volume show, they form an important part of the story of the external influence of EU law. The main categories of agreement are collated in Table 2.1 below. The landscape is constantly shifting as numerous negotiations with countries in different regions are ongoing.7 For example, Azerbaijan is negotiating an updated Partnership and Cooperation Agreement, while Tunisia and Morocco are involved in negotiations to conclude a new-​generation Association Agreement including a Deep and Comprehensive Free Trade Area (DCFTA). All of these agreements, to a greater or lesser extent, aim among other things to export elements of the EU acquis to the EU’s neighbouring countries. However, there is significant variation between and even within the agreements in terms of how they seek to encourage or secure alignment between third-​country law and EU law. For example, the agreements vary in terms of the degree of alignment that they aim to achieve, be it ‘homogeneity’ in the case of the EEA Agreement and respect for the same rules,8 or legislative approximation elsewhere.9 7 For updates, see:  accessed 24 April 2020. 8 EEA Agreement, Art 1, which aims to achieve ‘a homogenous economic area’ based on equal conditions of competition and respect for the same rules in areas such as safety, security, air traffic management, social harmonization, and the environment. See EEA Agreement, rec 1 and Art 1(1). 9 Likewise, the Comprehensive Aviation Agreements concluded by the EU, such as the European Common Aviation Agreement (ECAA), aim to achieve respect for the same or common rules. See

THE EXTERNAL INFLUENCE OF THE CJEU  19 Table 2.1  The EU’s international agreements with its neighbouring countries Category of agreement

Countries

EEA Agreement

Iceland, Liechtenstein, Norway

Bilateral agreements with Switzerland

Switzerland

Stabilisation and Association Agreements

Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia

Turkey Association Agreement

Turkey

New-​generation Association Agreements, including Deep and Comprehensive Free Trade Agreements

Georgia, Moldova, Ukraine

Comprehensive and Enhanced Partnership Armenia, Kazakhstan, Kyrgyz Republic and Cooperation Agreements First-​generation Association Agreements

Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Palestinian Authority, Tunisia

Partnership and Cooperation Agreements

Armenia, Azerbaijan, Georgia, Iraq, Kazakhstan, Kyrgyz Republic, Moldova, Russia, Tajikistan, Ukraine, Uzbekistan

Comprehensive Aviation Agreements1

Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia, Serbia (European Common Aviation Area Agreement), Georgia, Israel, Jordan, Morocco, and Moldova (pending signature with Armenia, Tunisia, and Ukraine)

Source: Author’s own research from access to official and commercial databases. 1 For updates, see ‘Atlas in the Sky’:  (under ‘Policy’) accessed 24 April 2020.

The agreements and different provisions within them also vary significantly in terms of the degree of ‘legalization’ with which they are imbued. According to Abbott and colleagues, legalization comprises three dimensions, each of which should be understood as operating on a spectrum from strong to weak.10 Obligation is understood by reference to the extent to which an actor is legally bound by a rule or commitment. Precision depends on the degree of ambiguity inherent in rules or commitments, with more precise rules being viewed as more strongly legalized. Multilateral Agreement between the European Community and its Member States, the Republic of Albania, Bosnia and Herzegovina, the Republic of Bulgaria, the Republic of Croatia, the former Yugoslav Republic of Macedonia, the Republic of Iceland, the Republic of Montenegro, the Kingdom of Norway, Romania, the Republic of Serbia, and the United Nations Interim Administration Mission in Kosovo on the establishment of a European Common Aviation Area—​Annexes—​Annexes—​Declarations, [2006] OJ L285/​16 (the ECAA Agreement). 10 Kenneth W Abbott and others, ‘The Concept of Legalization’ (2000) 54 Int’l Org 401. This is not an uncontroversial definition. See in particular Martha Finnemoore and Stephen J Toope, ‘Alternatives to Legalization: Richer Views of Law and Politics’ (2001) 55 Int’l Org 743.

20  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Delegation is deemed to be present when ‘third parties have been granted authority to implement, interpret and apply the rules; to resolve disputes; and (possibly) to make further rules’. For example, some agreements impose obligations of conduct, requiring third countries to ‘endeavour’ to ensure that their legislation is gradually made compatible with that of the EU.11 Others impose obligations of result, stating that the countries in question ‘shall carry out approximation of legislation’ to specified EU acts and international instruments.12 These latter agreements are also more precise in that they identify the specific EU legislation that falls within the scope of the alignment obligation and establish a timeframe within which alignment is to be achieved. From the point of view of this chapter, the most important element of the legalization concept is that of ‘delegation’, particularly in so far as this relates to the role conferred on the CJEU by the different agreements. As with the other dimensions of legalization, there is a high level of variation between the agreements in this respect. In relation to delegation, it is notable that some agreements both confer a role on the CJEU in interpreting the agreement or corresponding provisions of EU law and provide a mechanism for the CJEU to give a binding ruling on the interpretation of the agreement or corresponding provisions of EU law. The interpretative authority of CJEU judgments is recognized in a number of the agreements concluded by the EU with its neighbouring countries. This is clearest in relation to the EEA Agreement, the provisions of which are to be interpreted in conformity with the relevant pre-​signature rulings of the CJEU in so far as they are identical in substance to corresponding rules in EU law.13 The EFTA Court is also required to pay due account to the principles laid down by the relevant rulings of the CJEU delivered after the date of signature of the EEA Agreement.14 In practice, with some notable exceptions,15 the EFTA Court follows judgments delivered by the CJEU even where these are given after the date of the EEA Agreement.16 This, ‘[A]‌uthority on the interpretation of the common EEA rules rests with the [CJEU] (at least de facto).’17

11 This is the case for first-​generation Partnership and Cooperation Agreements and first-​generation Association Agreements. For a good discussion of the distinction between obligations of conduct and obligations of result, see Pierre-​Marie Dupay, ‘Reviewing the Difficulties of Codification:  On Ago’s Classification of Means and Obligations of Results in Relation to the International Responsibility of States’ (1999) 10 EJIL 371. 12 In particular, new-​generation Association Agreements including Deep and Comprehensive Free Trade Agreements (DCFTAs). Variation in the wording of approximation clauses is included in Comprehensive Aviation Agreements concluded by the EU with neighbouring countries. For instance, Moldova and Morocco are required to act in conformity with EU legislation, Ukraine to adopt necessary measures to incorporate EU acts, Jordan and Israel to ensure their legislation delivers the specified standards, and Georgia to render the relevant acts applicable. 13 EEA Agreement, Art 6. 14 Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice OJ L344, 31 January 1994, 3, Art 3(2). 15 EEA Agreement, Art 107 and Protocol 34. 16 ibid 632. 17 ibid 633.

THE EXTERNAL INFLUENCE OF THE CJEU  21 The EEA Agreement also permits the domestic courts and tribunals of EEA/​ EFTA states to make a reference to the CJEU concerning the interpretation of the EEA Agreement where an EEA/​EFTA state has agreed to use this procedure.18 Likewise, the Joint Committee established under the EEA Agreement is required to keep CJEU and EFTA Court case law under constant review and to act to preserve the homogenous interpretation of the agreement.19 Where differences emerge, and at the request of the contracting parties to the dispute, a reference to the CJEU is required.20 In practice, these procedures involving the CJEU have not been used. While the authority of the CJEU within the framework of the EEA Agreement is unsurprising given its goal of achieving legislative ‘homogeneity’, the CJEU’s authority is also increasingly recognized in other agreements concluded between the EU and its neighbouring countries. The provisions of the agreements conferring interpretative authority on the CJEU are summarized in Table 2.2 below. Although Table 2.2  The role of the CJEU in bilateral agreements concluded with neighbouring countries Agreement

Confer authority on CJEU jurisprudence

Delegate authority to CJEU to interpret law

Georgia Association Agreement (2014)

Public procurement Take due account of corresponding case law of CJEU in gradually approximating its public procurement legislation to the EU acquis (Art 146).

Where disputes concern the interpretation and application of a provision of the agreement which imposes an obligation that is defined by reference to EU law, and where the dispute raises a question of interpretation of EU law, the arbitration panel hearing the dispute shall request a ruling on the question from the CJEU. The CJEU’s ruling shall be binding on it (Art 267).

Moldova Association Agreement (2014)

Public procurement Take due account of corresponding case law of CJEU in approximating public procurement legislation to EU acquis (Art 273).

Where disputes concern the interpretation and application of a provision of the agreement relating to gradual approximation in the areas specified, and where the dispute raises a question of interpretation of EU law, the arbitration panel hearing the dispute shall request a ruling on the question from the CJEU. The CJEU’s ruling shall be binding on it (Art 403).

State aid State aid shall be assessed on the basis of criteria arising from application of EU competition law, including relevant jurisprudence of CJEU (Art 340).

Continued 18 ibid Art 107 and Protocol 34. The EEA/​EFTA state in question shall determine the extent to which, and modalities according to which, this procedure shall be used. 19 ibid Art 15(2). 20 ibid Art 111.

22  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Table 2.2  Continued Agreement

Confer authority on CJEU jurisprudence

Delegate authority to CJEU to interpret law

Ukraine Association Agreement (2014)

Public procurement Take due account of corresponding case law of CJEU in approximating public procurement legislation to EU acquis (Art 153).

Where disputes concern the interpretation and application of a provision relating to regulatory approximation in specified area, ‘or which otherwise imposes upon a Party an obligation defined by reference to a provision of EU law’, and where the dispute raises a question of interpretation of EU law, the arbitration panel hearing the dispute shall request a ruling on the question from the CJEU. The CJEU’s ruling shall be binding on it (Art 322).

State aid Use relevant jurisprudence of CJEU as source of inspiration for interpretation in application of state aid rules (Art 264). Establishment, services, and electronic commerce Provisions of Annex and specified provisions in the appendices that are identical in substance to EU law shall be interpreted in conformity with rulings of CJEU (Art 6, Annex XVII). Armenia Comprehensive and Enhanced PCA (2017)1

Where a dispute raises a question of interpretation of approximation provisions in specified areas, and where the dispute raises a question of interpretation of EU law, the arbitration panel hearing the dispute shall request a ruling on the question from the CJEU. The CJEU’s ruling shall be binding on it (Art 342).

Turkey Association Agreement (1963)

The Council of Association may decide to submit a dispute to the CJEU or to any other existing court or tribunal. Each party shall be required to take the necessary measures required to comply with such decisions (Art 25).

Source: Author’s own research from access to official and commercial databases. Note:  Switzerland is not included in this table, but is discussed in detail by Maiani in his excellent Chapter 5 in this volume. 1 Note that the second-​generation PCA concluded in 2015 with Kazakhstan [2016] OJ L29/​1, does not include equivalent provisions. At the time of writing, the text of the second-​generation PCA concluded with the Kyrgyz Republic is not available (see accessed 24 April 2020 for updates).

THE EXTERNAL INFLUENCE OF THE CJEU  23 there are similarities between agreements, there are differences including as to the precise wording. To give just one example, the scope of the reference procedure to the CJEU is broader in the Ukraine Association Agreement. This is because references can be made in relation to any provision in the agreement which imposes upon a Party an obligation defined by reference to a provision of EU law. The role of the CJEU is particularly pronounced in the European Common Aviation Area Agreement (ECAA Agreement) concluded with partner countries in the Western Balkans. It is notable in this respect that the Stabilisation and Association Agreements concluded by these countries do not expressly confer interpretative authority on, or delegate functions to, the CJEU. Moving forward, the EU has recognized that ‘not all partners aspire to conform to EU rules and standards’ and that ‘[d]‌ifferentiation and greater mutual ownership will be the hallmark of the new ENP’, notably for countries that do not wish to enter negotiations for a DCFTA.21 The EU has noted its intention to offer ‘lighter options’ for countries which choose not to liberalize trade across all sectors in the first instance. Bilateral agreements on conformity assessment and assessment facilitating the free movement of industrial products in specific sectors are highlighted as one example of a lighter approach. Though generally less remarked upon, sectoral agreements also sometimes include legalized approximation clauses and confer a role on the CJEU. Thus far, this is particularly true in the aviation sector, and the role of the CJEU in the EU’s Comprehensive Aviation Agreement including the ECAA Agreement is outlined in Table 2.3 below. The provisions of the ECAA Agreement are particularly striking in terms of the mechanisms it contains to preserve the interpretative supremacy and autonomy of the CJEU.

2.  The CJEU as agent of its own external authority This overview of the CJEU’s role in agreements concluded by the EU with its neighbouring countries offers insights into the role played by the CJEU as an agent of its own authority. While in important respects this role is limited, the CJEU has nonetheless shaped the provisions of the agreements included in Tables 2.2 and 2.3 above in significant ways. This section looks in turn at the limits and the extent/​nature of the CJEU’s role in enhancing its own authority. The limits to the CJEU’s role are immediately apparent in that many of the agreements under discussion in this chapter and in this volume as a whole do not confer interpretative authority on the CJEU or require bodies established by the 21 Review of European Neighbourhood Policy COM(2015) 50 final, states though that ‘[i]‌n the South, regulatory convergence and harmonisation should be sought in line with the Regional Transport Action Plan 2014‒2020 addressing maritime, aviation, rail, road and urban transport’.

24  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Table 2.3  Role of the CJEU in sectoral agreements concluded by the EU with its neighbouring countries Agreement

Confer authority on CJEU jurisprudence

Delegate authority to CJEU to interpret law

ECAA Agreement (2006)

Where provisions of the agreement are identical in substance to corresponding rules in the EU Treaty and to EU acts applicable to aviation included in Annex I, they shall be interpreted in conformity with the relevant pre-​signature rulings of the CJEU (Art 16). At the request of Contracting Parties, the Joint Committee shall determine the implications of post-​signature rulings of the CJEU. Decisions taken by the Joint Committee under this procedure shall be in conformity with the CJEU’s case law (Art 16). The Joint Committee shall keep the CJEU’s case law under review and shall act within three months to preserve the homogenous interpretation of the agreement (Art 18(7)). Decisions taken by the Joint Committee under the dispute settlement procedure shall respect the case law of the Court of Justice (Art 20).

National courts and tribunals of ECAA partner countries shall ask the EU to decide a question of interpretation of: –​  the agreement –​ acts applicable to aviation specified in Annex I and acts adopted pursuant to these which are identical in substance to corresponding rules of EU law. They shall do so when they consider it necessary to give judgment and in accordance with Annex IV. As with the EEA Agreement, ECAA partners may stipulate the extent to which, and according to what modalities its courts and tribunals are to apply this provision (Art 16). Where a court or tribunal of last resort is not able to make a reference to the CJEU, its judgments will be transmitted to the Joint Committee, which shall act to preserve the homogenous interpretation of the agreement. If it does not succeed, the procedure under Article 20 applies. This procedure permits the EU, acting with its Member States, or an ECAA partner, to bring a dispute concerning the interpretation or application of the agreement to the Joint Committee. Where a dispute is not resolved, the parties to the dispute may refer it to the CJEU, whose decision shall be final and binding (Art 20, and for the modalities of this procedure see Annex IV).

Other comprehensive aviation agreements

Interpret provisions of the agreement that are identical in substance to specified provisions of the EU acquis, in conformity with the relevant rulings of the CJEU (Georgia, Art 21(5); Moldova, Art 21(5)).

Source: Author’s own research from access to official and commercial databases.

THE EXTERNAL INFLUENCE OF THE CJEU  25 agreements to act in conformity with its case law. This is true especially in relation to first-​generation Partnership and Cooperation Agreements and Association Agreements. The patchy nature of the CJEU’s external authority in international treaties entered into by the EU with neighbouring countries reminds us that it is not indispensable for such agreements to confer authority on the CJEU in order for them to be compatible with EU law. It is, however, notable that there is a loose correlation between the strength of the approximation obligations included in the relevant agreements and the strength of the role of the CJEU. This is exemplified in particular by new-​generation Association Agreements, which include strongly legalized approximation clauses and confer extensive authority on the CJEU. It is also exemplified by the second-​generation Partnership Agreement concluded by Armenia, which contains a moderately legalized approximation clause (‘shall carry out approximation of its legislation to acts of the European Union referred to in Annex I),22 whilst conferring moderate authority on the CJEU (the agreement does not include a conforming interpretation obligation, but does set out a procedure for references to be made to the CJEU). The CJEU’s capacity to shape the content of these agreements has resulted from the Treaty on the Functioning of the European Union (TFEU) Article 218(11), which confers power on Member States, the European Parliament, the Council, or the Commission to obtain the CJEU’s opinion as to whether an envisaged international agreement is compatible with EU law. Where the CJEU issues an adverse opinion, the envisaged agreement may not enter into force unless it is amended or the EU Treaties are revised. The CJEU has issued a number of important opinions pursuant to this procedure, thereby stamping its mark indelibly on the content and functioning of international agreements entered into by the EU.23 It is by examining these opinions that we can appreciate the CJEU’s role in shaping the nature and extent of its own authority in the international agreements included in Tables 2.2 and 2.3 above. On the one hand, the CJEU has adopted an open approach. For example, it has accepted that it is in principle lawful for the EU to enter into an international agreement which creates its own system of courts with responsibility for interpreting and applying the provisions of the agreement.24 An agreement may also confer new powers on the CJEU, including by conferring jurisdiction on it to interpret the 22 Armenia Comprehensive and Enhanced PCA [2018] OJ L23/​1, Art 41. 23 The most important of these opinions for the purpose of this discussion is Opinion 1/​91, Opinion delivered pursuant to the second subpara of Art 228 (1) of the Treaty—​Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area (ECLI:EU:C:1991:490). Also important is Opinion 1/​ 09, Draft agreement—​ Creation of a unified patent litigation system—​ European and Community Patents Court—​Compatibility of the draft agreement with the Treaties (ECLI:EU:C:2011:123). Readers should also be aware of Opinion 2/​13 Opinion pursuant to Article 218(11) TFEU—​Draft international agreement —​Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms—​Compatibility of the draft agreement with the EU and FEU (ECLI:EU:C:2014:2454). 24 Opinion 1/​91 (n 23) paras 4 and 70.

26  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES agreement. On the other hand, the CJEU has insisted strongly that an international agreement may not change the essential character of the function of the CJEU or entail an adverse effect on the autonomy of European Union legal order.25 Consequently, it is not compatible with EU law for an international agreement to pursue the goal of achieving homogeneity between the provisions of an international agreement and rules internal to the EU legal order where the judicial machinery for achieving this goal leads to the result that interpretations laid down by a court established by the agreement will ‘condition the [CJEU’s] future interpretation of EU rules’.26 This was said by the CJEU to be contrary to the very foundations of the Community (EU). Moreover, while it is acceptable for an agreement to confer jurisdiction on the CJEU to interpret the provisions of an agreement following a request from courts or tribunals in non-​EU Member States, the CJEU has insisted that the answers that it gives must be binding on the relevant courts or tribunals.27 Equally, the CJEU has insisted that it is not consistent with EU law for a body established by an international agreement to exercise functions which require it to rule on the division of competence between the EU and its Member States. This could negatively affect the allocation of responsibilities laid down in the treaties and the autonomy of the EU legal order.28 Finally, where a conferral of exclusive jurisdiction on an international court or tribunal created by an international agreement has the effect that Member State courts or tribunals are deprived of their tasks of implementing EU law and their power (and sometimes duty) to make references for preliminary rulings to the CJEU, this ‘would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law’.29 While the CJEU found the envisaged EEA Agreement to be incompatible with EU law in its first opinion, it reversed its position when it evaluated the significantly amended agreement in its second EEA opinion.30 The introduction of these amendments following the Court’s first opinion demonstrates the authority that it wields in shaping

25 Opinion 1/​09 (n 23) para 89. 26 Opinion 1/​91 (n 23) para 46. See also Opinion 2/​13 (n 23) paras 183‒84. 27 Opinion 1/​91 (n 23) para 61. 28 ibid para 35. 29 Opinion 1/​09 (n 23) para 89. See also Opinion 2/​13 (n 23) paras 198‒99, where the CJEU identified a danger that the preliminary ruling procedure could be circumvented, thereby affecting the effectiveness and autonomy of this procedure. 30 Opinion 1/​92, Opinion pursuant to the second subpara of Art 228 (1)  of the EEC Treaty—​ Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area (ECLI:EU:C:1992:189). The CJEU issued a qualified positive opinion stating ‘[t]‌he provisions of the agreement which deal with the settlement of disputes, as long as the principle that decisions taken by the Joint Committee are not to affect the case-​law of the Court of Justice is laid down in a form binding on the Contracting Parties’.

THE EXTERNAL INFLUENCE OF THE CJEU  27 the design of international agreements, especially in relation to the systems for judicial supervision that they include. This is apparent also in relation to the ECAA Agreement, which was likewise subject to a favourable opinion by the CJEU.31 The CJEU’s opinions are clearly reflected in the role conferred on the CJEU in the agreements included in Tables 2.2 and 2.3 above. Decisions adopted by bodies established under these agreements do not enjoy powers that have the potential to affect CJEU case law and hence do not condition the future interpretation of EU rules. In the case of the EEA Agreement this was clarified by a ‘‘procès-​verbal agréé ad article 105’ which clarified that decisions taken by the Joint Committee established by the agreement are not to affect CJEU case law. This informal agreement was viewed by the CJEU as ‘an essential safeguard which is indispensable for the autonomy of the Community legal order’.32 Steps have been taken to preserve the interpretative autonomy and supremacy of the CJEU, both by requiring bodies established under the agreements to respect the CJEU’s jurisprudence and by recognizing the legally binding effect of rulings that it gives within the framework of these agreements. Furthermore, where jurisdiction is conferred on bodies established by the agreements to make references to the CJEU, this does not compromise the jurisdiction of national courts and tribunals in EU Member States whose power to request preliminary rulings from the CJEU is unaffected. The ECAA also clarifies that questions concerning the legality of decisions adopted by the EU under the agreement fall within the exclusive competence of the CJEU.33

C.  The CJEU and ‘Global Reach’ EU Law While the chapters in this volume devote considerable attention to the content of international agreements concluded by the EU, including the approximation clauses contained within them, they pay considerably less attention to the unilateral mechanisms used by the EU to extend the geographical reach of its laws. This section highlights three such mechanisms, namely extraterritoriality, territorial extension, and the Brussels Effect. Its main focus is to exemplify the role that the CJEU has played in facilitating the global reach of EU law. While the impact of the measures under consideration is not confined to the countries examined in the chapters in this volume, as several examples cited here will exemplify, these countries have been affected by these unilateral mechanisms as well. The EU has developed a range of techniques to externalize the application of EU law in countries that are not EU Member States. Among these techniques are 31 Opinion 1/​00, Opinion pursuant to Article 300(6) EC—​Proposed agreement between the European Community and non-​Member States on the establishment of a European Common Aviation Area (ECLI:EU:C:2002:231). ECAA Agreement. 32 Opinion 1/​92 (n 30) paras 223‒224. 33 ECAA Agreement, Art 15(3).

28  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES extraterritoriality and territorial extension.34 Extraterritoriality arises when the application of EU law beyond EU borders is triggered by something other than a territorial connection with the EU. For example, EU Member States are required to exercise jurisdiction over their own nationals when they commit certain crimes outside the EU.35 This constitutes an example of extraterritorial jurisdiction which is nationality based. Territorial extension, by contrast, arises when the application of EU law is triggered by the existence of a territorial connection with the EU but where the law having been so triggered also applies to foreign conduct; for example, where the placing of a third-​ country product on the EU market (territorial connection) is made conditional on how the product was harvested or produced (application to foreign conduct). It is important to stress that it is not always easy or uncontroversial to draw a distinction between a territorial and non-​territorial trigger for the application of EU law. There is, for example, disagreement about whether the effects doctrine should be regarded as a territorial or extraterritorial basis for the exercise of prescriptive jurisdiction.36 This doctrine bases the exercise of jurisdiction over foreign conduct on the fact that this conduct entails significant domestic effects. While extraterritoriality is rare in EU law, territorial extension is widespread. It is important to note that it operates at a number of different levels in EU law, depending on the scope of the foreign conduct that is to be appraised in assessing compliance with EU law. Three levels may be distinguished and are summarized in Table 2.4 below. As measures move from transaction-​level to country-​level Table 2.4  Different levels of territorial extension in EU law Level of territorial extension

Definition

Transaction level

An assessment of compliance with EU law necessitates an appraisal of foreign conduct relating to a particular transaction (eg the mode of production of a particular EU-​bound shipment of goods)

Firm/​company level

An assessment of compliance with EU law necessitates an appraisal of the overall conduct and/​or governance of a firm

Country level

An assessment of compliance with EU law necessitates an appraisal of conduct within a third country and/​or third-​country law

Source: Author’s own research from access to official and commercial databases.

34 For a fuller discussion, see Scott ‘Extraterritoriality’ (n 5). Also Marise Cremona and Joanne Scott (eds), EU Law beyond EU Borders: The Extraterritorial Reach of EU Law (OUP 2019). 35 See eg Directive 2011/​36 on preventing and combating trafficking in human beings and protecting its victims [2011] OJ L101/​1, Art 10(1)(b). Member States are also required to exercise jurisdiction over crimes committed within their territory, and may, subject to certain conditions, choose to exercise jurisdiction over crimes committed by or against a habitual resident or for the benefit of a legal person established in its territory. 36 Recognizing this uncertainty: ‘Amicus Curiae Brief by the European Commission on Behalf of the European Commission on Behalf of the European Union in Support of Neither Party’ in Kiobel v Royal Dutch Petroleum Co, 569 US 108 (2013).

THE EXTERNAL INFLUENCE OF THE CJEU  29 territorial extension, the regulatory ambit of EU law in third countries expands and measures giving rise to country-​level territorial extension are therefore especially controversial. Unsurprisingly, the CJEU has been called upon to rule on the lawfulness of extraterritoriality and territorial extension and to interpret measures of this kind. It has adopted what may be characterized as a permissive approach.37 We can see this in competition law where the Court has endorsed a qualified effects test, finding that it is lawful for the EU to punish conduct outside of the EU ‘when it is foreseeable that the conduct in question will have an immediate and substantial effect in the European Union’.38 The CJEU has also accepted that EU competition law can extend to anti-​competitive agreements concluded outside of the EU where the anti-​competitive practices in question are ‘implemented’ within the EU.39 Perhaps more controversially, the CJEU upheld the lawfulness of territorial extension in the Air Transportation of America case and in so doing laid considerable emphasis on the fact that the application of the contested EU law was triggered by the existence of a substantial territorial connection with the EU.40 The CJEU accepted the validity of the EU Directive, including extraterritorial greenhouse gas emissions within the scope of the EU’s emissions trading scheme.41 In assessing the compatibility of this measure with international law, the CJEU observed that the EU ‘cannot’ render its laws applicable to foreign aircraft which are flying over third countries or the high seas.42 However, it went on to find that the EU Directive did not offend the principle of territoriality in customary international law because it only applied to aircraft that were physically present within the territory of an EU 37 Whilst noting that the CJEU has yet to uphold the lawfulness of non-​effects-​based extraterritoriality. For ‘near misses’, see Case C-​209/​13 United Kingdom v Council [2014] (ECLI:EU:C:2014:283) concerning the UK’s action for annulment of the Council decision to authorize eleven Member States to establish enhanced cooperation among themselves to establish a financial transaction tax, where the CJEU concluded that neither the counterparty principle nor the issuance principle formed part of the contested Decision authorizing enhanced cooperation and that therefore that the action should be dismissed; Case C-​507/​13 United Kingdom v European Parliament and Council [2014] (ECLI:EU:C:2014:2481), where AG Jaaskinen rejected all of the pleas in law put forward by the United Kingdom, and subsequently the United Kingdom exercised its prerogative to withdraw its application for annulment and was ordered to pay the costs; and Case C-​308/​06 R ex parte Intertanko v Secretary of State for Transport [2008] ECRI-​4057 (ECLI:EU:C:2008:312), where the CJEU refused to assess the legality of an EU Directive regulating ship-​source pollution, including on the high seas, on the basis that the European Community was not party to the International Convention for the Prevention of Pollution from Ships (MARPOL Convention) and that the United Nations Law of the Sea Convention is not such as to confer rights on individuals. Though the Directive in question could be considered to be extraterritorial, this issue was not raised before the CJEU. 38 Case C-​413/​14P Intel Corporation Inc v European Commission [2017] (ECLI:EU:C:2017:632) para 49. 39 ibid para 44. See also Joined Cases C-​89/​85, 104/​85, 114/​85, 116/​85, 117/​85, and 125/​85 to 129/​85 Ahlström Osakeyhtiö v Commission [1988] (ECLI:EU:C:1988:447) para 16. 40 Case C-​366/​10 Air Transportation Association of America (ATAA) v Secretary of State for Energy and Climate Change [2011] (ECLI:EU:C:2011:864). 41 Directive 2008/​101 including aviation in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L8/​3. 42 ATAA (n 40) para 122.

30  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Member State. Aircraft taking off from and landing at an airport within the EU should be regarded as being subject to the ‘unlimited jurisdiction’ of the EU and its Member States.43 In a sense, the Air Transportation of America case was an easy one for the CJEU to address. Not only was the contested measure underpinned by a strong territorial connection with the EU (aircraft landing in and taking off from the EU), but it also pursued a climate mitigation objective which has been internationally endorsed and was intended to guard against the negative effects of climate change, which would be felt within the EU as well as globally.44 Nonetheless, it is important to stress that the CJEU has not hesitated to interpret measures as giving rise to territorial extension, even where they are more strongly unilateral and operate in pursuit of objectives which are wholly geographically external to the EU. We have seen this particularly in cases involving EU regulation of animal welfare. For example, the CJEU has accepted that an EU prohibition on the testing of cosmetics ingredients on animals should apply also to animal testing in third countries when the results of these animal tests are relied upon to demonstrate the safety of cosmetics ingredients being placed on the EU market.45 In this as well as in other cases, the CJEU has emphasized the importance of guarding against the danger that EU regulation could be circumvented by carrying out a prohibited activity outside of the EU.46 Also, given the textual ambiguity inherent in legislation that the Court has interpreted as giving rise to territorial extension, it is clear that there is no presumption against territorial extension in EU law.47 Significantly, the CJEU has shown itself to be willing to interpret and apply EU legislation as giving rise to both firm-​level and country-​level territorial extension, thereby permitting a broader sphere of application of EU law abroad. As noted, firm-​level territorial extension arises when compliance with EU law is judged at the level of a firm rather than at the level of a single EU-​centred

43 ibid paras 124‒25. 44 The CJEU cited all three of these considerations in ATAA (n 40)  paras 124‒25, 128, and 129. See Barbara Cooreman, Global Environmental Protection through Trade:  A Systemic Approach to Extraterritoriality (Edward Elgar 2017) for one example of an author who considers that unilateral extraterritorial measures are more problematic than those premised on international agreement, and likewise extraterritorial measures, which pursue objectives that are geographically external to the regulating state. See Joanne Scott, ‘The Global Reach of EU Law’ in Cremona and Scott (n 34) for an attempt to defend measures that pursue global and external environmental objectives by relying on the concept of complicity. 45 Case C-​592/​14 European Federation of Cosmetics Ingredients v Secretary of State for Business, Innovation & Skills [2016] (ECLI:EU:C:2016:703). 46 ibid para 42. See also Intel (n 38) para 44. Likewise, the inclusion of an anti-​evasion clause in EU legislation can serve to extend the geographical scope of EU law to include foreign transactions to the extent that this is necessary or appropriate to prevent the evasion of EU law. See eg Regulation 648/​2012 on OTC Derivatives, Central Counterparties and Trade Repositories [2012] OJ L201/​209, Arts 4(1)(a) (v) and 11(2). 47 Case C-​424/​13 Zuchtvieh-​Export GmbH v Stadt Kempten [2015] (ECLI:EU:C:2015:259).

THE EXTERNAL INFLUENCE OF THE CJEU  31 transaction. For example, in assessing whether a third-​country air carrier should be subject to an EU operating ban, the EU will consider whether the firm (an air carrier such as Ethiopian Airlines) in question meets relevant safety standards taking specified criteria into account.48 These criteria pertain to the safety record and performance of the air carrier not just within the EU, but worldwide. For example, it is relevant to take into account ‘substantiated accident-​related information or serious incident-​related information indicating latent systemic safety deficiencies’, regardless of where in the world accidents or incidents occur.49 In some pieces of EU legislation, the concept of a company or firm is very broadly defined. We see this, for example, in the EU Regulation on Classification Societies.50 This applies to ‘organisations’ seeking authorization to provide ship certification services to EU Member States. Compliance with the standards laid down in the EU Regulation is assessed at the level of an organization which is defined broadly as ‘a legal entity, its subsidiaries and any other entities under its control, which jointly or separately carry out tasks falling under the scope of this Regulation’.51 In many situations, conformity with EU law will thus depend upon the governance and conduct of foreign branches and subsidiaries that do not provide services within an EU Member State. The CJEU has been willing to interpret EU law as giving rise to firm-​level territorial extension and in so doing has been influential in extending the global reach of EU law. Most famous perhaps is the CJEU’s development of a ‘single economic entity’ test in EU competition law.52 According to this, where a parent company exercises decisive influence over the conduct of its subsidiary, the two companies constitute a single undertaking and are regarded as jointly and severally liable in relation to breaches of EU competition law.53 It is presumed that decisive influence has been exercised in the case of wholly owned subsidiaries unless the parent can demonstrate that the subsidiary has decided upon its own conduct in the market independently. Thus, a third-​country parent company may be liable for breaches of EU competition law committed by an EU subsidiary. In this example, wrongdoing is imputed to the foreign subsidiary in assessing that company’s liability under EU law. More recently, and no less controversially, the CJEU has amalgamated domestic and third-​country firms in a different way, thereby rendering an EU 48 Regulation 2111/​2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier [2005] OJ L344/​15, Annex I (final sub-​paragraph). 49 ibid Annex I, para 1. 50 Regulation 391/​2009 on common rules and standards for ship inspection and survey organisations [2009] OJ L131/​11. 51 ibid Art 1(i). 52 Originally in Case 48/​69 Imperial Chemical Industries (ICI) v Commission [1972] (ECLI:EU:C:1972:70). 53 See in particular Case C-​97/​08 Akzo Nobel and Others v Commission [2009] (ECLI:EU:C:2009:536) paras 54‒78.

32  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES subsidiary responsible for the foreign conduct of a foreign firm. In Google Spain (the famous ‘right-​to-​be-​forgotten’ case), the CJEU adopted a broad, purposive, reading of the EU’s Data Protection Directive, and concluded that the foreign conduct of a foreign parent company could be imputed to a subsidiary established within an EU Member State.54 Thus data processing carried out abroad by a third-​country firm (Google Inc) was deemed to be carried out ‘in the context of the activities’ of Google Spain on the basis that the activities of Google Inc and Google Spain were ‘inextricably linked’.55 This inextricable link arose from the fact that Google Spain was responsible for selling advertising space offered by Google Inc. As in the Cosmetics case, the CJEU justified its broad territorial reading of this Directive in light of the need ‘to prevent individuals from being deprived of a protection guaranteed by the directive and that protection from being circumvented’.56 Data protection is also the policy area in which the CJEU has endorsed an interpretation of the Data Protection Directive that favours robust country-​level territorial extension.57 The CJEU adopted a strict interpretation of the adequacy standard laid down in Article 25(1) of the EU’s Data Protection Directive, which makes the transfer of personal data to a third country for processing conditional on that third country ensuring an adequate level of data protection. While the Court accepted that a third country’s level of protection could be considered to be adequate even if the means that it uses to ensure data protection differ from those of the EU, ‘those means must nevertheless prove, in practice, effective in order to ensure protection essentially equivalent to that guaranteed within the European Union’.58 For the European Commission to endorse as adequate the level of protection guaranteed by a third country, it must adopt a reasoned decision finding that the third country in question ensures a level of protection that is essentially equivalent to that of the EU.59 Given the importance of the EU’s data protection objective, and the grave threat posed to it by a transfer of data to a third country that does not ensure an adequate level of protection, the Court narrowed the Commission’s discretion and insisted that the requirements underpinning an adequacy determination must be strictly applied.60 Although the CJEU has adopted a permissive stance in relation to measures giving rise to territorial extension, it has also been sensitive to the danger of the emergence of regulatory conflicts between the EU and third countries, and in some cases, it has taken steps to mitigate this danger. We see this, for example, 54 Case C-​131/​12 Google Spain SL v Mario Costeja González [2014] (ECLI:EU:C:2014:317). 55 ibid para 56. 56 ibid para 54. 57 Case C-​362/​14 Maximillian Schrems v Data Protection Commissioner [2015] (ECLI:EU:C:2015:650). 58 ibid para 74. The Commission is required to revisit its adequacy determination periodically to verify whether its adequacy determination is still legally and factually justified (para 76). 59 ibid para 96. 60 ibid para78.

THE EXTERNAL INFLUENCE OF THE CJEU  33 in the Cosmetics animal testing case that was referred to earlier.61 Here, the Court followed the Advocate General in rejecting a maximalist reading of the Cosmetics Directive. It did not accept that the mere fact that a cosmetic ingredient had been tested on animals should result in its exclusion from the EU market, even where the testing had been carried out to satisfy the regulatory requirements of a third country. On the contrary, the Court concluded that the EU prohibition should only apply when the results of the animal testing had been relied upon to demonstrate that the products were safe and therefore in conformity with EU law.62 In similar vein, in Zuchtvieh, the CJEU read a conflict equivalence clause into the relevant EU legislation, even though this did not exist on the face of the text.63 This clause served to recognize that where the law or administrative practice of a third country ‘verifiably and definitely precludes full compliance’ with EU law, compliance with EU-​equivalent standards of animal welfare will be regarded as sufficient instead.64 The salience of the CJEU’s willingness to hold the lawfulness of measures giving rise to territorial extension can be illustrated by reference to one concrete example. As was noted in 1. ‘The role of the CJEU in international agreements with neighbouring countries’, the CJEU upheld the validity of the EU’s Directive including aviation in the scope of the EU’s emissions trading scheme.65 It did so even though the contested measure gave rise to territorial extension. It was as a result of this judgment that it was open to the EU to insist in negotiations with Switzerland that it include aviation in its emissions trading scheme as a condition for the conclusion of an agreement ‘linking’ the EU and Swiss schemes. The agreement between the EU and Switzerland provides resulted in the inclusion of aviation activities in their respective emissions trading schemes (ETSs) in accordance with the essential criteria set out in Annex I.66 Uniform rules which are based largely on the EU scheme will henceforth apply to both the EU and Swiss schemes. Although the essential criteria included in Annex I are closely modelled on EU law, the Agreement does not envisage any direct interpretative function for the CJEU. The presence of the CJEU can nonetheless be felt indirectly as a result of its decision to uphold the validity of the EU Directive including aviation in the EU’s ETS.67

61 See Cosmetics (n 45). 62 Zuchtvieh (n 47) especially paras 36‒45. The results of third-​country tests had to be included in the safety file to be submitted to demonstrate safety, but mere inclusion in the file was not considered enough to trigger the prohibition. 63 ibid. 64 ibid para 54. 65 ibid. 66 Agreement between the European Union and the Swiss Confederation on the linking of their Greenhouse Gas Emissions Trading Systems [2017] OJ L322/​3. The scheme is intended to enter into force on 1 January 2020. 67 ATAA (n 40).

34  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES As a final point it is relevant to note that the CJEU’s permissive stance towards extraterritoriality and territorial extension, and specifically to firm-​level and country-​level territorial extension, has made it an important actor also in relation to the so-​called Brussels Effect.68 This well-​known concept was developed by Anu Bradford to describe the situation in which third-​country actors decide to over-​ comply with EU law by conforming to EU standards even when they are not required legally to do so; for example, because they are producing goods for sale domestically or in a third-​country market, rather than within the EU. Bradford termed this voluntary over-​compliance as the ‘de facto Brussels Effect’. Moreover, Bradford has argued that the emergence of a de facto Brussels Effect will sometimes induce third-​country governments to voluntarily align their domestic laws and regulations with EU law, and where they do so she termed this the ‘de jure Brussels Effect’. Bradford has made an important contribution by identifying the conditions that underpin the emergence of the Brussels Effect.69 These conditions are summarized in Table 2.5 below. One of the most important of the conditions included in this table is the non-​ divisibility of standards. Non-​divisibility of standards arises when it is costly, inconvenient, difficult, or impossible for companies to comply with EU standards Table 2.5  Conditions giving rise to the Brussels Effect Condition

Definition

EU market power

The EU must enjoy a large domestic market relative to other markets.

EU regulatory capacity

The EU must enjoy a high level of regulatory expertise and resources to enforce its rules.

EU preference for strict rules

The EU must exhibit a propensity to enact strict standards.

EU predisposition to regulate inelastic targets

EU regulation must be aimed at regulating inelastic targets, such as consumer markets, in order to make it more difficult for companies to engage in regulatory arbitrage.

Non-​divisibility of standards

Third-​country producers must have an incentive to comply with EU standards at all times, even when producing goods for sale outside of the EU market.

Source: Extrapolated from Anu Bradford, The Brussels Effect (OUP 2020), ­chapter 2.

68 Bradford (n 6). 69 Bradford (n 6) 1‒18. In addition to non-​divisibility of standards, the other conditions are market power, regulatory capacity, a preference for strict rules, and a predisposition to regulate inelastic targets, such as consumer markets.

THE EXTERNAL INFLUENCE OF THE CJEU  35 only when producing goods for sale within the EU. The non-​divisibility of standards is therefore a key driver of the Brussels Effect. Bradford distinguishes between three types of non-​divisibility. Economic non-​divisibility of standards is said to occur when it is less costly in economic terms for a company to harmonize production according to a single, strict, standard than it is to comply with a multitude of different, often less stringent, standards. Technical non-​divisibility of standards occurs when the presence of a technical obstacle precludes companies from producing separate batches of goods for different markets. They are therefore compelled to comply with the strictest standards at all times. The concept of legal non-​divisibility of standards is not defined by Bradford but is, rather, illustrated by reference to a single example. ‘[G]‌lobal mergers . . . cannot be consummated on a jurisdiction-​by-​jurisdiction basis . . . [and therefore] the most stringent antitrust jurisdiction gets to determine the fate of the transaction worldwide’.70 While Bradford does not address the concept of territorial extension, it is clear that firm-​level and country-​level territorial extension can contribute to the non-​divisibility of standards and hence to the emergence of the Brussels Effect. These forms of territorial extension expand the scope of EU regulation and require compliance to be assessed by reference to firm-​level behaviour or by reference to the content of third country law. As such, when the CJEU interprets EU law in such a way that it is imbued with the characteristic of firm-​level or country-​level territorial extension, by implication the CJEU is also endorsing legal non-​divisibility of standards and thereby contributing to the emergence of the Brussels Effect. We see an example of the Brussels Effect in Arie Reich’s discussion of the Bosman case in Chapter 12 in this volume.71 In this example, the external impact of this CJEU judgment was mediated via standards adopted by European sporting federations which implemented the Bosman ruling by easing restrictions on the inclusion of foreign (EU) players in teams. Because Israeli sporting federations are often members of broader European federations, Israeli teams were required to comply with the standards adopted by these European federations. However, they were only required to do so when participating in European, as opposed to national sporting events. Nonetheless, Reich has shown how Israeli teams gradually implemented Bosman also in relation to teams participating in national sporting events. They did so in order to avoid fielding different teams for different events, with a view to enhancing the teams’ cohesion and performance. In this example, the relevant EU standards turned out to be technically non-​divisible in that it would have been detrimental for a team’s performance to separate out distinct spheres of

70 ibid. 71 Case C-​415/​93 Union royale belge des sociétés de football association ASBL v Jean-​Marc Bosman, Royal club liégeois SA v Jean-​Marc Bosman and Union des associations européennes de football (UEFA) v Jean-​Marc Bosman [1995] (ECLI:EU:C:1995:463).

36  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES compliance and non-​compliance. Consequently, the EU standards spill over into the ostensibly domestic sphere, thereby creating a de facto Brussels Effect.

D.  Conclusion The chapters in this volume include many rich examples of EU and CJEU influence (and sometimes lack of influence) abroad. This chapter was intended to help locate these examples in the context of broader academic discussions of the global reach of EU law. Seen against this backdrop, it is clear that the CJEU has played a key role in enhancing its own authority within the international agreements that the EU has concluded with its neighbouring countries. It has also adopted a permissive approach to ‘global reach’ EU law thereby facilitating the influence of EU law abroad. Going back to Reich’s discussion of the Bosman case, as already discussed, this emerges as an especially interesting example of the de facto Brussels Effect, which is one of the mechanisms that serves to confer global reach on EU law. Here, the influence of the CJEU’s interpretation of EU free movement rules was transmitted to Israel via private standards adopted by European sporting federations. The de facto Brussels Effect facilitated the diffusion of these private standards in Israel due to technical ‘non-​divisibility’ of standards which arose from the fact that it may be damaging to a team’s performance to alter its composition depending upon whether it is playing in a national or international league. While Bosman has likewise been influential in other third countries, the reasons for this are less clear than in the case of Israel. The chapters in this volume also identify data protection as an important domain of influence of the CJEU and EU law more generally. The CJEU has played a key role in this respect, imbuing the EU’s Data Protection Directive with firm-​ level territorial extension in Google Spain,72 thereby transmitting its disciplines to the third-​country parent companies of EU subsidiaries. The CJEU also adopted a robust interpretation of the country-​level territorial extension present in this Directive as a result of the restrictions it places on the transfer of data from the EU to third countries.73 Data protection therefore offers a clear example where an appreciation of the mechanisms of global reach EU law can help in understanding why some legislation and some judgments of the CJEU have come to exert considerable influence outside of the EU.74 In addition, the present chapter has highlighted the importance of the CJEU judgment in the Air Transportation of America case where it upheld the validity 72 Google Spain (n 54). 73 Schrems (n 57). 74 For a full discussion, also in the context of Regulation (EU) 2016/​679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/​46/​EC (General Data

THE EXTERNAL INFLUENCE OF THE CJEU  37 of the EU Directive including international aviation within the scope of its greenhouse gas emissions trading scheme.75 This Directive was then effectively externalized to Switzerland in the context of its conclusion of an emissions trading ‘linking agreement’ with the EU.76 If the CJEU had not upheld the lawfulness of the EU’s Aviation Directive, the EU would not have been in a position to stand firm in its insistence that Switzerland include aviation in its domestic emissions trading scheme as well. It is also interesting that one of the key judgments of the CJEU concerning the global reach of EU law involved the external application of EU law concerning animal welfare in Belarus, Russia, and Kazakhstan.77 Here, the CJEU read the relevant law as giving rise to an element of country-​level territorial extension when it acknowledged that it may be necessary to recognize EU-​equivalent third-​country standards in order to avoid a direct conflict between EU and third-​country norms. It would be interesting to ascertain whether this judgment has thus far shaped the content of third-​country law in any of the neighbouring countries considered in this volume. This leads to one final methodological point. In the chapters that follow, it becomes clear that in some legal systems it can be very challenging to identify instances in which CJEU case law has been cited. Given the volume and diversity of EU legislation, it is also deeply challenging to trace the influence of this legislation within third countries. Nonetheless, an understanding of the different mechanisms through which EU law attains its global reach, and attentiveness to CJEU jurisprudence interpreting global reach EU law, can offer some help in identifying the obscure corners of EU law which may be prone to produce legal effects within third countries.

Protection Regulation) [2016] OJ L119/​1, see Christopher Kuner, ‘The Internet and the Global Reach of EU Law’ in Cremona and Scott (n 34).

75

ATAA (n 40). Linking Agreement (n 66). 77 Zuchtvieh (n 47) para 54. 76

3

‘External’ Case Law as a Source of Inspiration for the Court of Justice of the European Union Allan Rosas

A.  Introduction The days are bygone when judicial systems were almost exclusively national in character and when judges could wear blinkers preventing them from looking for advice outside their national context. Law has become internationalized and—​ in Europe—​‘Europeanized’. This development has affected the judicial branch in many ways. To name but three examples, first, courts are more often than before called upon to apply, or at least take into account, legal norms established outside the context of their own constitutional order. Second, the International Court of Justice (ICJ) has been followed by a plethora of international—​including regional—​courts and tribunals, which has even led to a debate about the ‘proliferation’ of international dispute settlement bodies.1 Third, there is a growing ‘horizontal’ interaction and dialogue between judges, national as well as international, implying that judges may draw inspiration from case law emanating from courts outside their own judicial system, even if there is no obligation to do so.2 This book focuses on a question that has received very little attention in the past, namely the relevance of case law of the Court of Justice of the European Union (CJEU)3 for courts and tribunals in non-​EU countries, specifically in the European neighbourhood. The present contribution considers judicial dialogue from the opposite perspective: what relevance does case law emanating from external judicial 1 See eg Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (OUP 2003) 1‒11; Ruth Mackenzie and others (eds), The Manual on International Courts and Tribunals (2nd edn, OUP 2010). 2 See eg Allan Rosas, ‘The European Court of Justice in Context: Forms and Patterns of Judicial Dialogue’ (2007) 1 Eur J Leg Stud 2; Filippo Fontanelli, Guiseppe Martinico, and Paulo Carroza (eds), Shaping Rule of Law through Dialogue:  International and Supranational Experiences (Europa Law Publishing 2010). 3 The European Court of Justice is simply referred to in the Treaty on European Union (TEU), Art 19(1) as the ‘Court of Justice’; see also accessed 29 April 2020: ‘The Court of Justice of the European Union, which has its seat in Luxembourg, consists of two courts: the Court of Justice and the General Court (created in 1988).’ Allan Rosas, ‘External’ Case Law as a Source of Inspiration for the Court of Justice of the European Union In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0003.

EXTERNAL CASE LAW AS INSPIRATION FOR THE CJEU  39 bodies, including international, regional, and national courts and tribunals, have for the CJEU? Hopefully, this perspective will broaden our understanding of the place and role of the CJEU in a wider context. In the context of the discussion on the influence of the case law of the European Court of Human Rights (ECtHR/​ Human Rights Court) in Strasbourg on CJEU case law, some words will also be said about the opposite situation; that is, the influence of CJEU case law on Strasbourg case law. It should be stressed that, for the purposes of this contribution, it has not been possible to conduct a wide-​ranging and detailed analysis of all the situations where ‘external’ case law may be relevant for the CJEU. The discussion takes place at a general level, with some examples, rather than a systemic account of all instances where the CJEU has cited such case law. The main emphasis is on the Court of Justice rather than the General Court (the former Court of First Instance).4 To clarify any possible confusion, together these two Union Courts in Luxembourg form the institution that in Article 19(1) of the Treaty on European Union (TEU) is termed the CJEU. For an understanding of the CJEU’s proneness to draw inspiration from external case law, it seems appropriate at the outset to say a few words about the interaction between the CJEU and the national courts of the EU Member States. The objective is to further an understanding of the EU judicial system as a whole, in order to put the question of ‘external’ case law in its proper perspective, rather than to suggest that such national case law is to be seen as an ‘external’ factor for the CJEU.

B.  National Courts as EU Courts While Union law and the national law of the Member States were initially seen principally as two separate legal orders, later developments have brought out the close links between the two. The present author has even described the situation as consisting of two historically distinct legal orders, but forming part of a common legal system.5 Be that as it may, the Court of Justice has already for some time referred to the EU judicial system as consisting of not only the Union courts in Luxembourg (the Court of Justice and the General Court) but also the national courts of the Member States.6 Union law forms part of national law and the national courts are 4 TEU (n 3) Art 19(1) also mentions ‘specialised courts’. Since the abolition of the EU Civil Service Tribunal in 2016, the ‘Court of Justice of the European Union’ now only includes the Court of Justice and the General Court. 5 Allan Rosas and Lorna Armati, EU Constitutional Law:  An Introduction (3rd rev edn, Hart Publishing 2018) 15, 51, 63, 6 One of the most important decisions in this regard is Opinion 1/​09, Draft agreement—​Creation of a unified patent litigation system—​European and Community Patents Court—​Compatibility of the draft agreement with the Treaties [2011] (ECLI:EU:C:2011:123). See also Allan Rosas, ‘The National Judge as EU Judge: Opinion 1/​09’ in Pascal Cardonnel, Allan Rosas, and Nils Wahl (eds), Constitutionalising the EU Judicial System: Essays in Honour of Pernilla Lindh (Hart Publishing 2012) 105.

40  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES thus required not only to apply Union law, but also to recognize its direct effect, as well as its primacy over national law.7 The EU judicial system is a highly decentralized system, with an important role for national courts in the application and interpretation of Union law.8 They decide whether to request a preliminary ruling from the Court of Justice, and they decide which questions are to be referred to the Court. After having obtained a binding ruling from the Court of Justice on the interpretation or validity of the Union law norm, they apply the interpretation or decision on validity provided by the Court to the concrete case before them and give their final judgment on that basis. Not only is Union law highly relevant for national courts (as it constitutes their ‘law of the land’), but national law may also be relevant for the Court of Justice and the General Court. For instance, in infringement proceedings normally brought by the European Commission against a Member State, the Court of Justice may have to determine, for the purposes of these proceedings, the content of national law, in order to be able to judge whether the Member State is in compliance with Union law. National case law may assist in understanding the prevalent interpretation and application of national law. If there is a situation of non-​compliance, the case may turn out to concern more or less directly the national case law itself. The Court of Justice, in Opinion 1/​09, observed that where European Union law is infringed by a national court, the provisions of Articles 258–​260 of the Treaty on the Functioning of the European Union (TFEU) provide for the opportunity to bring a case before the Court of Justice to obtain a declaration that the Member State concerned has failed to fulfil its obligations.9 In some concrete cases, too, the Court has acknowledged that an infringement may follow from national case law rather than from legislative or administrative acts.10 In a recent case, a Member State was found to be in non-​compliance with Union law, as its Supreme Court had, in the given case, refrained from requesting a preliminary ruling from the Court of Justice under Article 267 TFEU.11 However, it should be recalled that in infringement proceedings, the Court refers to national law, including national case

7 The direct applicability and primacy of Union law had already been recognized in the seminal judgments of Case 26/​62 van Gend and Loos [1963] (ECLI:EU:C:1963:1) and Case 6/​64 Costa v ENEL [1964] (ECLI:EU:C:1964:66). 8 See eg Allan Rosas, ‘The National Judge as EU Judge: Some Constitutional Observations’ (2014) 67 SMU L Rev 717; Allan Rosas, ‘The Interaction between the European Court of Justice and National Courts in Preliminary Ruling Procedures: Some Institutional and Procedural Observations’ in Hélène Ruiz Fabri (ed), International Law and Litigation: A Look into Procedure (Nomos 2019) 603. 9 Opinion 1/​09 (n 6) para 87. 10 Tristan Materne, La procédure en manquement d’État. Guide à la lumière de la jurisprudence de la Cour de justice de l’Union européenne (Larcier 2012) 195‒99. Examples here given include Case C-​ 129/​00 Commission v Italy [2003] (ECLI:EU:C:2003:656), which is also referred to in Opinion 1/​09 (n 6) para 87. 11 Case C-​416/​17 Commission v France [2018] (ECLI:EU:C:2018:811). According to TFEU, Art 267(3), courts of last instance are in principle under an obligation to request preliminary rulings on the correct interpretation of Union law.

EXTERNAL CASE LAW AS INSPIRATION FOR THE CJEU  41 law, only for the purposes of these proceedings, and the Court is not empowered to overturn decisions of national courts. In the preliminary ruling procedure, it is even more evident that the interpretation and application of national law is a matter for national courts rather than the Court of Justice. That said, national law, including national case law, may also be important for the Court in order to understand the Union law problem facing the national court. That is why Article 94 of the Rules of Procedure of the Court12 requires that a request for a preliminary ruling should contain ‘the tenor of any national provisions applicable in the case and, where appropriate, the relevant national case-​law’. Sometimes requests for preliminary rulings contain a rather detailed description of national case law and of possible differences between interpretations put forward by various national courts. By virtue of Article 101 of its Rules of Procedure, the Court of Justice may request clarifications from the referring national court, and this request may concern, inter alia, the content of national law, including its interpretation in relevant case law. It may also happen that a national court indicates that it is in disagreement with, or espouses doubts about, the compatibility with Union law of case law emanating from another national court of the same Member State (including a Supreme Court or a Constitutional Court13) and seeks to obtain an interpretation of EU law from the Court of Justice that would support the view of the requesting court. The Court may, in this way, become informed about various national interpretations of Union law norms, which may enrich the debate before it, although it is true that there is also a risk of the Court being ‘instrumentalized’ in an ongoing legal battle between national courts. Be that as it may, in principle, the Court takes a favourable view of the referring national court expressing its own opinion on the interpretation of a Union law rule.14 Even if in the above situations, national case law may become relevant for the Court of Justice when dealing with infringement or preliminary ruling cases, the fact remains that the Court is the final arbiter on questions of interpretation and validity of Union law and the Court, to my knowledge, has never cited a national judgment as authoritative support for a given interpretation of a Union law rule. The Court may, in fact, be wary of appearing to be influenced by the case law emanating from one specific Member State, as it is rather expected to 12 [2012] OJ L265 (the Rules of Procedure have subsequently been amended several times, but the modifications have not affected Art 94). 13 To cite but one example, in Case C-​414/​16 Egenberger [2018] (ECLI:EU:C:2018:257) paras 30‒32, the German Federal Labour Court requested a preliminary ruling as it had doubts about the conformity with Union law of the case law of the German Federal Constitutional Court concerning the autonomy of churches. 14 Under para 17 of the Recommendations to national courts [2018] OJ C257/​1, the referring court or tribunal ‘may also briefly state its view on the answer to be given to the questions referred for a preliminary ruling. That information may be useful to the Court, particularly where it is called upon to give a preliminary ruling in an expedited or urgent procedure.’

42  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES take a ‘European approach’. That said, national case law may become relevant as demonstrating a trend, especially concerning issues such as the interpretation of human rights/​fundamental rights and general principles of law, which are to a certain extent common to national, regional, and international courts. The attention of the Court of Justice to such trends in Member States’ national case law may be drawn by the national judge making a reference to the Court, surveys prepared by the research department of the Court, or the Advocate General delivering an opinion (an independent opinion not binding on the Court and delivered by a member of the Court who is not a judge).15 The relevance of case law emanating from courts of the Member States may become even more directly relevant where, exceptionally, national law is, in a Union law norm, declared directly relevant, or even applicable, as Union law.16 Examples include the legislation relating to the Union trademark17 and to the banking union.18 In such situations, national case law may become even more important than is normally the case, as it can be surmised that the Court of Justice would follow a position taken by national courts if national case law is consistent and clear on a given point. If national case law is evolving or conflicting, the situation becomes more complex. In EUIPO v Szajner, the General Court and—​subsequently—​ the Court of Justice were faced with a situation where national case law had evolved and one of the issues was whether a judgment of the French Supreme Court (Cour de Cassation) could be taken into account if it had been given after the decision of the Board of Appeal of the European Union Intellectual Property Office (EUIPO).19 The answer of the two courts was in the affirmative. The Court of Justice stated that ‘it is essential that the General Court is not deprived, notwithstanding lacunae in 15 See eg Case C-​157/​15 Achbita [2016] (ECLI:EU:C:2016:382) (Opinion of Kokott AG, 31 May 2016) para 38, n 21, where national case law (as well as US case law) is cited in support of the view that in this case a headscarf was worn for religious reasons and that the case fell within the substantive scope of the EU-​law prohibition on religious discrimination. For other examples, see Case C-​550/​07 P Akzo Nobel v Commission [2010] (ECLI:EU:C:2010:229) (Opinion of Kokott AG, 29 April 2010) n 87 (citing, apart from the US Supreme Court and the Australian Federal Court, practice partly based on national case law concerning the right of in-​house lawyers to invoke professional privilege), and Case C-​618/​ 15 Samsung Electronics France [2016] (ECLI:EU:C:2016:843) (Opinion of Wathelet AG, 9 November 2016) (citing several national judgments in a case concerning the jurisdiction of national courts on the basis of the place where a harmful event occurred). 16 See Rosas and Armati (n 5) 82‒83; Mior Prek and Silvère Lefèvre, ‘The EU Courts as “National” Courts: National Law in the EU Judicial Process’ (2017) 54 CML Rev 369. 17 See eg Council Regulation (EC) 207/​2009 of 26 February 2009 on the Union trademark (codified version) [2009] OJ L 78/​1, Art 8(4), which allows the proprietor of a non-​registered trademark or other sign, under certain conditions, to prevent registration of a new trademark if, ‘pursuant to [EU] legislation or the law of the Member State governing that sign’, rights to the sign were acquired beforehand and the sign confers on its proprietor the right to prohibit the use of a subsequent trademark. 18 Council Regulation (EU) 1024/​2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions [2013] OJ L287/​63, Art 4(3) instructs the Central bank also to apply national legislation transposing Union directives or national legislation exercising options granted by Union regulations. 19 Case C-​598/​14 European Union Intellectual Property Office (EUIPO) v Gilbert Szajner [2017] (ECLI:EU:C:2017:265). See also Case C-​263/​09 Edwin v EUIPO [2011] (ECLI:EU:C:2011:452).

EXTERNAL CASE LAW AS INSPIRATION FOR THE CJEU  43 the documents submitted as evidence of the applicable national law, of the real possibility of carrying out an effective review’. Hence, the General Court should be able ‘to confirm, beyond the documents submitted, the content, the conditions of application and the scope of the rules of [national] law relied upon . . .’.20 The examination by the Court of Justice, in the context of an appeal, of the findings of the General Court with regard to the applicable national law, is limited to manifest errors.21 It seems to me that, in these situations, examination of national law becomes a question of law, rather than of fact.

C.  The Relevance of International Case Law National case law emanating from the courts of the EU Member States is thus in many respects relevant also for the CJEU, but it then constitutes an EU internal source, in the context of the Union judicial system, which encompasses both the national courts and the Union Courts in Luxembourg. In contrast, decisions by international courts and tribunals are more of an external source. Formally speaking, some international judicial or quasi-​judicial bodies may be ‘less external’ than others, in the sense that the EU may be a contracting party to the international agreement establishing the body in question, whereas other bodies may belong to treaty regimes to which the EU has not formally adhered.22 The former type of judicial or quasi-​judicial bodies include the International Tribunal for the Law of the Sea (ITLOS) under the UN Convention on the Law of the Sea (UNCLOS),23 the World Trade Organization (WTO) dispute settlement system under the Dispute Settlement Understanding,24 and the arbitral tribunals that can be established under bilateral trade and cooperation agreements concluded by the EU with a number of third countries.25 In Opinion 1/​91, the CJEU, in reaffirming that the EU may conclude agreements establishing binding dispute settlement mechanisms, observed that the decisions of such international courts ‘will be binding on the Community institutions, including the Court of Justice’, and that this is also the case ‘in the event that the Court of Justice is called upon to rule, by way of preliminary ruling or direct action, on the interpretation of the international agreement, in so far as that agreement is an integral part of the Community legal order’.26 20 Case C-​598/​14 (n 19) para 38. 21 ibid para 56. 22 For an overview, see eg Allan Rosas, ‘The EU and International Dispute Settlement’ (2017) 1 EU and the World: A Law Rev 1. 23 Council Decision 98/​392/​EC of 23 March 1998 [1998] OJ L179/​1. 24 Council Decision 94/​800/​EC of 22 December 1994 [1994] OJ L336/​1. 25 The arbitration mechanisms are discussed in Rosas, ‘The EU and International Dispute Settlement’ (n 22) 12‒16. 26 Opinion 1/​91, Opinion delivered pursuant to the second subpara of Art 228(1) of the Treaty—​ Draft agreement between the Community, on the one hand, and countries of the European Free Trade

44  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES With respect to ITLOS, a caveat should be mentioned, namely that the EU, while a contracting party to UNCLOS, has not accepted, ex ante, the jurisdiction of the Tribunal.27 ITLOS, as far as it has been possible to establish within the confines of the present study, has nevertheless been mentioned in at least two judgments of the Court of Justice, but either in a factual context,28 or because—​in an institutional case concerning the powers of the Commission to represent the Union externally—​the issue at hand was the filing of a brief by the Commission in an advisory opinion procedure before ITLOS.29 The Court may have drawn some inspiration from ITLOS case law, however, in an infringement case where the defendant government invoked a certain interpretation of UNCLOS. The Advocate General, citing a judgment of ITLOS, disagreed with this interpretation. The Court, referring to these parts of the opinion, agreed with its Advocate General, but without citing the ITLOS judgment explicitly.30 According to well-​established CJEU case law, the WTO Agreements, while binding on the EU, lack direct effect, apart from certain exceptional circumstances.31 In Van Parijs, in particular, the Court confirmed that WTO rules cannot be directly invoked in order to contest the compatibility of Union rules with those WTO rules, even if the WTO dispute settlement mechanism has ruled that such an incompatibility exists.32 On the other hand, there is, by virtue of the principle of consistent interpretation, a general obligation to interpret Union law, as far as possible, in conformity with WTO law.33 Indeed, in a number of cases, the Court of Justice, including its Advocates General,34 and the General Association, on the other, relating to the creation of the European Economic Area [1991] ECR 06079 (ECLI:EU:C:1991:490) para 39. 27 This does not prevent the EU from accepting the jurisdiction of ITLOS on an ad hoc basis, as was the case in the Swordfish case, Case C-​7 Case concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-​Eastern Pacific Ocean (Chile/​European Union) accessed 23 June 2020. See eg Esa Paasivirta, ‘The European Union and the United Nations Convention on the Law of the Sea’ (2015) 38 Fordham Int Law J 1045. 28 Case C-​459/​03 Commission v Ireland [2006] (ECLI:EU:C:2006:345) para 39. 29 Case C-​73/​14 Council v Commission [2015] (ECLI:EU:C:2015:663). See also Rosas, ‘The EU and International Dispute Settlement’ (n 22) 21‒23. 30 Case C-​299/​02 Commission v Netherlands [2004] (ECLI:EU:C:2004:620) para 23, [2004] (ECLI:EU:C:2004:321) (Opinion of Leger AG, 27 May 2004) paras 49‒57; see also in Case C-​83/​13 Svenska Transportarbetareförbundet [2014] (ECLI:EU:C:2014:201) (Opinion of Mengozzi AG, 1 April 2014) n 65, citing the ITLOS and ECJ judgments and the Opinion of Leger AG. ITLOS is also mentioned in Case C-​213/​15 P Commission v Breyer [2016] (ECLI:EU:C:2016:994) (Opinion of Bobek AG, 21 December 2016) para 111, but in the context of citing the practice of several international courts with respect to access to documents. 31 See eg Case C-​377/​02 Van Parijs [2005] (ECLI:EU:C:2005:121); Case C-​21/​14 Commission v Rusal Armenal [2015] (ECLI:EU:C:2015:494); Joined Cases C-​659/​13 and C-​34/​14 C & J Clark International [2016] (ECLI:EU:C:2016:74). 32 Case C-​377/​02 (n 31). See also eg Case C-​93/​02 P Biret International [2003] (ECLI:EU:C:2003:517) paras 51‒66; Case C-​207/​17 Rotho Blaas [2018] (ECLI:EU:C:2018:840) para 46. 33 On this principle, see eg Rosas and Armati (n 5) 68‒72. 34 See eg in Case C-​41/​02 Commission v Netherlands [2004] (ECLI:EU:C:2004:520) (Opinion of Poiares Maduro AG, 14 September 2004) n 54.

EXTERNAL CASE LAW AS INSPIRATION FOR THE CJEU  45 Court35 have cited decisions emanating from the WTO dispute settlement system, as further argument in favour of a certain interpretation of WTO rules. To mention but three examples, in Anheuser-​Busch, the Court of Justice cited two decisions of the WTO Appellate Body as an authoritative interpretation of the Agreement on Trade-​Related Intellectual Property Rights (TRIPS).36 In HEKO Industrieerzeugnisse, the Court cited a WTO Panel report relating to the interpretation of the Agreement on Rules of Origin.37 In X and X BV, the Court held that a party’s reading of some customs classifications decisions taken in the context of the WTO mechanism was erroneous.38 As for bilateral arbitration clauses binding on the EU, there is very little to say. While there is an abundance of such clauses, disputes between the Union and third countries have very rarely been submitted to arbitration.39 Apparently, no case of the CJEU cites such arbitration awards as a source of inspiration for the interpretation of Union law. That said, the Court has had to deal with the questions as to whether commercial arbitral bodies may request preliminary rulings from the Court (the answer has, generally speaking, been in the negative40), whether the use of investor–​state arbitration (ISDS) in relations between EU Member States is compatible with Union law (the answer in Achmea was in the negative41), and whether an ISDS mechanism established in an agreement between the EU and a third country (Canada) is compatible with Union law (the answer was in the affirmative).42 While the above mechanisms are provided for in agreements binding on the EU, the court system established under the European Convention on Human Rights (ECHR/​the Convention) is not directly applicable to the Union. The reason is that the EU, despite Article 6(2) TEU, according to which the Union ‘shall accede’ to the ECHR, has not been able to implement this objective.43 On the other hand, the ECHR system is directly relevant for the EU, in view of, inter alia, the references to the Convention in Article 6(3) TEU and the Preamble to and Articles 52(3) and 53 of the EU Charter of Fundamental Rights. Article 52(3) of the Charter is 35 For one of many examples from the case law of the General Court, see Case T-​45/​06 Reliance Industries v Council and Commission [2008] (ECLII:EU:T:2008:398) paras 107‒10. 36 Case C-​245/​02 [2004] (ECLI:EU:C:2004:717) paras 49 and 67. 37 Case C-​260/​08 [2009] (ECLI:EU:C:2009:768) para 22. 38 Joined Cases C-​319/​10 and C-​320/​10 [2011] (ECLI:EU:C:2011:720) paras 22, 35‒51. 39 Rosas, ‘The EU and International Dispute Settlement’ (n 22) 9‒10, 18. 40 See eg Case 102/​81 Nordsee [1982] (ECLI:EU:C:1982:107) paras 10‒13; Case C-​126/​97 Eco Swiss [1999] (ECLI:EU:C:1999:269) para 34. 41 Case C-​284/​16 [2018] (ECLI:EU:C:2018:158). 42 Opinion 1/​2017 of the Court [2019] (ECLI:EU:C:2019:341) issued 30 April 2019. 43 As is well known, the ECJ issued a negative opinion as to whether a draft accession agreement negotiated between the Commission and the States Parties to the Convention was compatible with Union law, Opinion 2/​13, Opinion pursuant to Article 218(11) TFEU—​Draft international agreement—​ Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms—​Compatibility of the draft agreement with the EU and FEU [2014] (ECLI:EU:C:2014:2454).

46  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES particularly significant, as it requires that rights in the Charter that ‘correspond’ to rights guaranteed by the ECHR be given the same meaning and scope as those laid down by the Convention.44 While efforts to include, in this provision, an explicit reference to the case law of the ECtHR failed,45 the Explanations, drawn up as a way of providing guidance in the interpretation of the Charter, clarify that this case law (as well as CJEU case law) should be taken into account in the application of Article 52(3).46 Well before the entry into force of the Lisbon Treaty and the Charter of Fundamental Rights in 2009, the CJEU, first, held that the ECHR has ‘special relevance’ for the determination of EU fundamental rights and, then, started to cite individual judgments of the ECtHR as support for a given interpretation.47 This trend intensified in the 1990s and up to the entry into force of the Lisbon Treaty. However, the entry into force of the Treaty and of the Charter brought about a new situation: since then, the Charter has become the central point of departure and frame of reference for the Union Courts. This should come as no surprise, as it is now the Charter that is the directly applicable and binding source of fundamental rights for these Courts (and for national courts as well, when dealing with issues of EU law).48 This does not imply, on the other hand, that the CJEU would have started to omit the ECHR and Strasbourg case law from its reasoning. Article 52(3) of the Charter and other provisions of Union law in fact oblige the CJEU to take the ECHR into account and to see to it that the level of protection offered by the Charter does not become lower than that of the Convention. The fact remains, however, that Article 52(3) is a provision of EU primary law, the application and interpretation of which is in the hands of the Union Courts in Luxembourg and the national courts of the EU Member States. Article 52(3) does not change the fact that, as the CJEU has confirmed, the ECHR has not been formally incorporated into EU law.49 That is also why the CJEU has stressed that an examination of the validity of Union legal norms ‘must be undertaken solely in the light of the fundamental rights guaranteed by the Charter’.50 Moreover, the CJEU 44 See Commentary to Art 52(3) in Steve Peers and others (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) 1490‒503. 45 See Vasiliki Kosta and Bruno de Witte, ‘Human Rights Norms in the Court of Justice of the European Union’ in Martin Scheinin (ed), Human Rights Norms in ‘Other’ International Courts (CUP 2019) 263, 269. 46 The non-​binding Explanations are mentioned in TEU, Art 6(1) and Art 52(7) of the Charter. They were published in [2007] OJ C303. 47 See eg Allan Rosas, ‘Fundamental Rights in the Luxembourg and Strasbourg Courts’ in Carl Baudenbacher, Pers Tresselt, and Thorgeir Orlygsson (eds), The EFTA Court:  Ten Years On (Hart Publishing 2007) 163; Allan Rosas, ‘The European Union and Fundamental Rights/​Human Rights: Vanguard or Villain?’ (2015) a Solidarity and Human Rights lecture, University of Gdansk. 48 A Rosas, ‘Five Years of Charter Case Law: Some Observations’ in Sybe de Vries, Ulf Bernitz, and Stephen Weatherill (eds), The EU Charter of Fundamental Rights as a Binding Instrument: Five Years Old and Growing (Hart Publishing 2015) 11, 13. 49 See eg Case C-​524/​15 Menci [2018] (ECLI:EU:C:2018:197) para 22. 50 See eg Case C-​601/​15 PPU JN [2016] (ECLI:EU:C:2016:84) para 46, with references to earlier case law. See also Menci (n 49) para 24.

EXTERNAL CASE LAW AS INSPIRATION FOR THE CJEU  47 has cited a sentence in the Explanations to Article 52 which, after stating that the EU legislator, in limiting Charter rights, must comply with the same standards as are fixed by the limitation arrangements laid down in the ECHR, adds that this should take place ‘without thereby adversely affecting the autonomy of Union law and of that of the Court of Justice of the European Union’.51 This reference to the ‘autonomy’ of EU law, which is also to be found more generally in Luxembourg case law, such as Opinion 2/​13 on the draft accession agreement,52 suggests that the CJEU wants to keep the application and interpretation of such expressions as ‘corresponding to’ and ‘the same meaning and scope’, which are to be found in Article 52(3), under its control rather than limiting itself to a ‘copy-​and-​paste’ approach to Strasbourg case law. It should be added that when the Explanations to Article 52 refer to the relevance of case law, the reference is not only to Strasbourg case law, but also to that of the EU’s own judicial institution, the CJEU. Despite these caveats, Luxembourg judgments rather often—​normally after having determined the Charter provision or provisions applicable, and often citing Article 52(3)—​take a look at the Convention and relevant Strasbourg case law, with a view to assuring that the protection afforded by the Charter is not lower than that guaranteed by the Convention.53 Many judgments may, on the other hand, lack an explicit reference to the ECHR, for example, if the case concerns rights other than those guaranteed by the Convention, or if Strasbourg case law on a given point is non-​existent or ambiguous.54 In general, the Luxembourg and Strasbourg Courts are involved in a fruitful judicial dialogue,55 also exemplified by regular meetings between the two Courts, which take place at least annually; indeed, I would argue that little tension exists between Luxembourg and Strasbourg case law. However, it should be added that this is a two-​way street, as the ECtHR is sometimes influenced by EU case law, rather than the reverse. To mention but a few examples: In Goodwin, the Strasbourg Court referred not to CJEU case law but to a provision in the EU Charter of Fundamental Rights to support its decision to consider refusal to recognize changes of sex as a violation of the Convention, while the CJEU, for its part, referred to Goodwin in a subsequent judgment.56 And in Scoppola, the Strasbourg Court, in concluding that the principle of more lenient criminal law could be inferred from the Convention, referred, inter alia, to the

51 JN (n 50) para 47; Case C-​18/​16 K [2017] (ECLI:EU:C:2017:680) para 50; Menci (n 49) para 23. 52 See n 43. 53 Relevant case law is abundant. For an example of early case law, see Case C-​279/​09 DEB [2010] (ECLI:EU:C:2010:811) paras 35‒36, 45‒52. For more recent examples, see Case C-​ 419/​ 14 WebMindLicenses [2015] (ECLI:EU:C:2015:832) paras 70‒72; Case C-​578/​16 PPU CK [2017] (ECLI:EU:C:2017:127) paras 67‒68, 78‒79; Menci (n 49) paras 23, 60‒62. 54 Kosta and De Witte (n 45) 276 mention several reasons which may explain the presence or absence of references to the ECHR in CJEU judgments. 55 On this concept, see eg Rosas, ‘The European Court of Justice’ (n 2). 56 Goodwin v United Kingdom App no 28957/​95 (ECtHR, 11 July 2002). The CJEU case is Case C-​ 117/​01 KB [2004] (ECLI:EU:C:2004:541).

48  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES explicit provision to this effect in the Charter, as well as CJEU case law.57 A recent example is offered by the case law of the two Courts concerning the principle ne bis in idem (known in Common Law jurisdictions as ‘double jeopardy’). Whilst the ECtHR had gone rather far in excluding a duplication of penalties or other sanctions,58 the CJEU can be said to have adopted a somewhat more permissive approach.59 The Human Rights Court, in a judgment of 2016, seems to have moved in the same direction, and in a recent judgment, the CJEU cited the Strasbourg judgment in support of the conclusion that duplication of criminal proceedings and an earlier administrative penalty was not, given the circumstances of the case, necessarily in contravention of the ne bis in idem principle.60 While the ECHR and the ECtHR are, both historically and currently, intimately connected to the European integration process and the development and application of EU law, the situation is different with respect to the ICJ. Not only is the EU not a Member of the UN and cannot be a party to a dispute before the ICJ, but content-​wise, fewer commonalities exist between, on the one hand, public international law as applied and interpreted by the CJEU and, on the other hand, CJEU law as such. That said, not only are all EU Member States members of the UN as well, but a number of other, more direct points of contact occur between the Union and the world organization.61 For instance, Article 3(5) TEU instructs the Union, inter alia, to contribute ‘to the strict observance and the development of international law, including respect for the principles of the United Nations Charter’. Issues of public international law do, in fact, come up in CJEU case law, in particular in the context of its EU external relations case law. From time to time, the CJEU cites judgments of the ICJ as support for a given interpretation of a public international law principle or rule.62 Such principles or rules include provisions of the Vienna Convention on the Law of Treaties of 1969,63 the law of the sea, as today codified in the UNCLOS,64 and issues of borders, territory, sovereignty, and recognition. To cite a topical example from the latter category, in two cases concerning the status of Western Sahara and the implications of this question for the scope of application of agreements concluded between the EU and Morocco, CJEU judgments contain several references to advisory opinions or judgments of the ICJ. In 57 Scoppola v Italy (No 2) App no 10249/​03 (ECtHR, 17 September 2009). The CJEU case is Joined Cases C-​387/​02, C-​391/​02, and C-​404/​02 Berlusconi [2005] (ECLI:EU:C:2005:270). 58 See eg Case C-​617/​10 Åkerberg Fransson [2013] (ECLI:EU:C:2013:105); Case C-​129/​14 PPU Spasic [2014] (ECLI:EU:C:2014:586). 59 A and B v Norway Apps no 24130/​11 and 29758/​11 (ECtHR, 15 November 2016). 60 Menci (n 49) paras 61‒62. 61 See eg Jan Wouters, Frank Hoffmeister, and Tom Ruys (eds), The United Nations and the European Union: An Ever Stronger Partnership (TMC Asser Press 2006). 62 See eg Allan Rosas, ‘With a Little Help from My Friends: International Case-​Law as a Source of Reference for the EU’ [2005] GCYILJ 203, 222‒26. 63 See eg Case C-​162/​96 Racke [1998] (ECLI:EU:C:1998:293) paras 24 and 50. 64 See eg Case C-​286/​90 Poulsen and Diva Navigation [1992] (ECLI:EU:C:1992:453) para 10; Case C-​37/​00 Weber [2002] (ECLI:EU:C:2002:122) para 34.

EXTERNAL CASE LAW AS INSPIRATION FOR THE CJEU  49 Council v Front Polisario, the references are to the Advisory Opinion on Western Sahara and the judgment concerning East Timor,65 while in Western Sahara Campaign UK, the referring national court cited the ICJ judgment concerning monetary gold removed from Rome.66 And in the recent case of Organisation juive européenne, Vignoble Psagot, which concerned consumer information on foodstuffs originating in territories occupied by Israel, the CJEU referred to the ICJ Advisory Opinion on legal consequences of the construction of a wall in the occupied Palestinian territories.67 Finally, it can be noted that the International Criminal Court (ICC) is mentioned in some Conclusions by Advocates General and in at least one judgment of the CJEU, but in the sense of the ICC system including its Statute, rather than in the form of ICC case law.68 The General Court, however, has in one judgment discussed the relevance of case law emanating from the International Criminal Tribunals for ex-​Yugoslavia and Rwanda (denying any such relevance).69

D.  National Courts of Third Countries As laid out in ‘C. The Relevance of International Case Law’ above, national courts of the EU Member States play a crucial role as integral parts of the EU judicial system, while international and regional courts, and the ECtHR in particular, may serve as sources of inspiration which, as the case may be, can or should be taken into account by the Union Courts. National courts of third countries play—​if at all—​a much more limited role in their case law. Nevertheless, a search conducted for the purposes of this contribution indicated that in some instances, the General Court—​or, for the Court of Justice, its Advocates General—​have cited above all US case law, most often that of the US Supreme Court.70 It is noteworthy that our research did not find a single case where the Union Courts, including its Advocates General, have cited case law emanating from the EU’s neighbouring countries. It should be emphasized that this search was limited to the two Union Courts in Luxembourg and does not cover the national courts of the EU Member States (i.e. whether, and to what extent, they cite US or other foreign case law). 65 Case C-​104/​16 P [2016] (ECLI:EU:C:2016:973) paras 28, 88, 91, 104. The ICJ decisions are Western Sahara, [1975] ICJ Reports (Advisory Opinion) 12 and East Timor, Portugal v Australia [1995] ICJ Reports (Judgment) 90. 66 Case C-​266/​16 [2018] (ECLI:EU:C:2018:118) paras 38, 41. The ICJ judgment is the ‘Monetary Gold Removed from Rome in 1943’ case (Italy v France, United Kingdom and United States [1954] ICJ Reports (Judgment) 19. 67 Case C-​363/​18 [2019] (ECLI:EU:C:2019:954) paras 48, 56. For the ICJ Advisory Opinion see [2004] ICJ Reports (Advisory Opinion) 136. 68 See judgment in Case C-​472/​13 Shepard [2015] (ECLI:EU:C:2015:117) paras 37, 39, 46. 69 Case T-​704/​14 Marine Harvest v Commission [2017] (ECLI: EU:T:2017:753) paras 364‒69. 70 I am indebted to Ms Caroline Naomé, Legal Secretary at my Cabinet, for having carried out this research.

50  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES To begin with the Court of Justice, we have not found a single case where the Court has cited a foreign national judgment in its own reasoning. In some cases, however, one of the parties has relied on a US Supreme Court decision, a fact that is noted in the descriptive part of the judgment (arguments of the parties).71 In addition, we have found one case where a citation of a US Supreme Court decision was made by the referring national court in its request for a preliminary ruling.72 Perhaps unsurprisingly, most of these cases concern competition law, while one concerns gender equality (equal pay). European and US competition law share many common features, and issues of non-​discrimination easily lend themselves to a comparative approach. The paucity of citations of foreign national decisions in Court’s judgments contrasts with that of the opinions of Advocates General. We have found many cases where an opinion refers to US Supreme Court case law in particular. This is normally done with a view to finding further support for a certain line of argument. Of the opinions that came up in the search, twenty-​five refer to US Supreme Court case law in the main text of the opinion, while in twenty-​five other cases, the reference is to be found in a footnote only and one case refers in a footnote to US federal courts other than the Supreme Court.73 One reference to the case law of the Australian Federal Court was also found.74 Again, most cases concern competition law, some deal with issues of equal treatment and non-​discrimination, and some relate to various issues, such as intellectual property rights.75 Most of the citations constitute rather brief excursions into US case law, but in some cases a somewhat more thorough discussion is to be found. To mention but two examples concerning competition law, in Ahlström and others v Commission, Darmon AG observed that the approach he was taking with respect to the question whether parallel conduct between undertakings may constitute proof of a concerted practice (see Article 101 TFEU) was ‘ultimately no different from the solutions which seem to emerge from the development of United States case-​law’. This was followed by citations of some individual cases.76 In FNV Kunsten Informatie en Media, Wahl AG pointed out that the interpretation of Article 101 TFEU he was proposing ‘seems broadly consistent with a number of rulings issued by the US 71 Case 26/​76 Metro SB-​ Grossmärkte and others v Commission [1977] (ECLI:EU:C:1977:167) (Report) 1893, 1895; Case 85/​76 Hoffmann-​La Roche v Commission [1979] (ECLI:EU:C:1979:36) (Report) 506; Case 96/​80 Kingsgate [1981] (ECLI:EU:C:1981:80) (Report) 916, 917; Case 60/​81 IBM v Commission [1981] (ECLI:EU:C:1981:264) (Report) 2649. 72 Case C-​453/​99 Courage [2001] (ECLI:EU:C:2001:465) para 13. 73 In Case C-​557/​12 Kone [2014] (ECLI:EU:C:2014:45) (Opinion of Kokott AG, 30 January 2014) n 52, also cites case law from US Courts of Appeal and a US District Court. 74 Akzo Nobel (n 15) (Opinion of Kokott AG, 29 April 2010) n 87. Reference is here also made to US case law. 75 To cite but one example from the field of intellectual property, see Case C-​104/​01 Libertel Group [2002] (ECLI:EU:C:2002:650) (Opinion of Léger AG, 12 November 2002)  n 81 (concerning trademarks). 76 Joined Cases 89/​85 and others [1993] (ECLI:EU:C:1993:120) (Opinion, 7 July 1992) paras 192‒94.

EXTERNAL CASE LAW AS INSPIRATION FOR THE CJEU  51 Supreme Court on the applicability of the Sherman Act in the context of labour disputes . . .’, adding, before citing individual cases, that the two legal frameworks are similar, but not identical.77 Thus, while in the context of the Court of Justice, the tendency to cite foreign—​predominantly US—​national case law is limited to the opinions of Advocates General, the situation is different with respect to the General Court, which does not currently use the institution of Advocate General. Our search has revealed some cases decided by the General Court—​and one by the then EU Civil Service Tribunal78—​where some of the parties have invoked US case law.79 This is not very different from what was found with respect to Court of Justice judgments. What is different, however, is that the General Court in some cases has itself entered into a discussion on the relevance of US case law. The approach can be summarized as follows: while the General Court does not find examples from US case law totally irrelevant, it has explicitly stated that the law, including the case law, of third countries, cannot trump the application of the EU Treaty rules relating to competition.80 This approach has not prevented the General Court from looking into US competition case law, including differences between EU and US law in this respect.81 It should be noted that this willingness on the part of the General Court to comment on US competition (anti-​ trust) case law may be related to the fact that the reasoning in the judgments of the General Court generally speaks more comprehensively and in greater detail than those of the Court of Justice.

E.  Summary and Concluding Remarks The discussion in this chapter has confirmed the existence of three different categories of case law which may be relevant for the Union Courts, namely, the case law of the national courts of EU Member States, that of international—​including regional—​courts, and finally that of courts of third countries. The first category is

77 Case C-​413/​13 [2014] (ECLI:EU:C:2014:2215) (Opinion, 11 September 2014)  paras 95‒99, nn 35‒40. 78 Case F-​44/​15 Spadafora v Commission [2016] (ECLII:EU:T:2016:69) (Order of the Civil Service Tribunal) para 16. 79 For a recent example from the case law of the General Court, see Case T-​679/​14 Teva UK and others v Commission [2018] (ECLII:EU:T:2018:919) para 169. 80 See eg Case T-​86/​95 Compagnie générale maritime v Commission [2002] (ECLII:EU:T:2002:50) para 341; Joined Cases T-​191/​98 and T-​212/​98–​T-​214/​98 Atlantic Container Line [2003] (ECLII:EU:T:2003:245) paras 1406‒07. 81 For a recent example, see Case T-​ 691/​ 14 Servier and others v Commission [2018] (ECLII:EU:T:2018:922) paras 110, 292‒95, 299, 303. This and some judgments issued on 8 September 2016 cite, inter alia, the US Supreme Court judgment of 17 June 2013 in Federal Trade Commission v Actavis (2013) 570 US; see eg Case T-​472/​13 Lundbeck and others v Commission [2016] (ECLII:EU:T:2016:449) paras 353, 492, 511‒13.

52  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES not one of ‘external’ case law at all, since the national courts of the Member States form an integral part of the EU judicial system. The second is the most important from the point of view of external sources. Within this category, we should distinguish between, on the one hand, international courts and tribunals which function under treaty regimes to which the EU has adhered and, on the other hand, other international courts and tribunals. It is remarkable that the most important instance of case law citations is that of the ECHR and its Human Rights Court, to which the EU is not a contracting party. The situation may, however, be characterized as one of ‘quasi-​adherence’, as the Union has incorporated several references to the European human rights system in its primary law (both the TEU and the Charter of Fundamental Rights). This again has prompted the Union Court to cite Strasbourg case law almost on a daily basis, although it is true that with the entry into force of the Charter, the number of citations may have somewhat declined in relative terms. Decisions of the WTO dispute settlement bodies are fairly often mentioned in Court of Justice or General Court decisions or Conclusions of Court of Justice Advocates General, although some of the references are of a predominantly factual nature, rather than case law citations proper. That there is also a number of cases where a WTO decision is cited in support of a certain interpretation of a WTO agreement is not surprising, given that the EU is a contracting party to the WTO agreements. The ICJ is more outside the EU remit as the Union is not a member of the UN and cannot be a party to a dispute before it. At the same time, that has not prevented the Union Courts from citing some ICJ judgments in support of a given position on a point of public international law. Citation of foreign national case law is quite selective as it is—​with a few exceptions—​the US Supreme Court that figures as comparative case law material, above all, in Conclusions rendered by Advocates General of the Court of Justice and sometimes also in judgments of the General Court. The scarcity of such references seems to be in line with the practice of national courts in general, most of which rarely cite judgments from ‘foreign’ jurisdictions. That said, there are certainly variations between national courts in this regard, and there may be an increasing trend towards a ‘horizontal’ dialogue between national courts, including the Union Courts. It is, however, noteworthy that our research did not expose any instances where the Union Courts would have cited decisions emanating from courts of the EU’s neighbouring countries. The reasons may be manifold. Lack of knowledge about such decisions, including problems of language and translation, may have played a part. Moreover, the judicial systems of some of these countries may be conceived as too different from the EU judicial system (whereas more commonalities have been perceived with the United States in matters such as competition law and anti-​discrimination law). On the other hand, the neighbouring countries, often by virtue of association and other agreements with the EU, are called upon to apply

EXTERNAL CASE LAW AS INSPIRATION FOR THE CJEU  53 rules similar to those contained in EU law and some of these countries, such as Iceland, Norway, and Switzerland, have legal and judicial systems akin to that of the EU. That is why it should not come as a big surprise if, in the future, references to the case law emanating from these countries start to appear. This book sheds more light on the reverse question, namely, the extent to which Luxembourg case law may be relevant for the judges of neighbouring countries.

4

The Influence of CJEU Judgments on the Legal Order of the Eurasian Economic Union Maksim Karliuk

A.  Introduction After the collapse of the Union of Soviet Socialist Republics (USSR), most post-​ Soviet countries pursued integration with one another, leading to the development of new regional organizations, free-​trade areas, customs unions, bilateral integration initiatives, and the like.1 While new institutions were quick to appear, making them work proved to be difficult. The latest example of regional integration in post-​ Soviet space is the Eurasian Economic Union (EAEU, or ‘Union’), an international organization launched on 1 January 2015 that aims to create a common market.2 The EAEU Treaty gives the following description of the EAEU: ‘The Union shall be an international organisation of regional economic integration and shall have international legal personality.’3 The EAEU currently consists of five Member States:  Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Russia. Importantly for the purposes of this research, the organization builds upon a previous regional integration initiative, namely the Eurasian Economic Community (EURASEC), which also had its own judiciary― the EURASEC Court. There are no official links between the EAEU and the European Union (EU), although discussions about bringing them closer together can be found from time to time. Moreover, it has been constantly reiterated in public discourse, including at the highest political level, that Eurasian integration follows the best practices of the EU.4 Further, one of the main objectives of the EAEU as stipulated in the EAEU 1 Alexander Libman and Evgeny Vinokurov, Holding-​Together Regionalism: Twenty Years of Post-​ Soviet Integration (Palgrave Macmillan 2012). 2 Treaty on the Eurasian Economic Union, adopted 29 May 2014 (EAEU Treaty), Art 4. The English version of the EAEU Treaty and its annexes can be accessed here: EAEU Legal Portal accessed 1 May  2020. 3 ibid Art 1(2). 4 See Guillaume Van der Loo and Peter Van Elsuwege, ‘Competing Paths of Regional Economic Integration in the Post-​Soviet Space’ (2012) 37(4) RCEEL 433; see also Roman Goncharenko, ‘Russia Maksim Karliuk, The Influence of CJEU Judgments on the Legal Order of the Eurasian Economic Union In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0004.

THE INFLUENCE OF THE CJEU ON THE EEU  55 Treaty is to create a common market for goods, services, capital, and labour, which resonates with the EU’s integration process.5 This chapter presents findings on the impact of the Court of Justice of the European Union (CJEU) on the legal system of the EAEU through the lens of citations of CJEU cases by the EAEU and EURASEC courts. It presents the statistics of these citations over the years and the fields of law where these citations are mostly found. Following that, certain prominent cases are discussed in order to put these citations into context. Finally, the possible impact of such citations is assessed.

B.  Eurasian Economic Union: Legal System and Judiciary 1.  EAEU legal system The EAEU legal order, as a totality of legal rules regulating this community and a unity thereof, is referred to by the EAEU Treaty as the ‘law of the Union’. The Treaty does not provide a definition, but according to Article 6, it consists of the following sources:

1. The EAEU Treaty itself. 2. International agreements within the EAEU framework. 3. International agreements of the EAEU with third parties. 4. Decisions and orders of the EAEU institutions.

The EAEU Treaty is the result of codification of a vast number of international agreements concluded within the Eurasian integration process and is the foundational treaty of the EAEU. International treaties within the EAEU framework expand on the EAEU Treaty: they are concluded ‘between Member States on issues related to the functioning and development of the Union’.6 Therefore, these agreements have a limited scope of participants as well as of subject matter. The major agreement within this category is the EAEU Customs Code.7 Decisions are regulatory acts, and orders are organizational and administrative acts8 adopted by the EAEU institutions, which are the Supreme Eurasian Economic Council (‘Supreme Council’), the Eurasian Intergovernmental Council (‘Intergovernmental Plans Eurasion Union on EU Model’ (26 December 2011) accessed 29 April  2020. 5 Arguably, one of the reasons for that is positioning the EAEU as an alternative to the EU, to create conditions preventing states from joining the EU and/​or coming under more political influence thereof. 6 EAEU Treaty, Art 2. 7 Treaty on the Customs Code of the Eurasian Economic Union (11 April 2017); Case SE-​2-​2/​2-​17-​ BK Internal Market Exceptions (Opinion, 30 October 2017). 8 EAEU Treaty, Art 2.

56  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Council’), and the Eurasian Economic Commission (‘Commission’). The Supreme Council is the highest EAEU institution, which consists of heads of state, and considers the principal issues regarding the functioning of the EAEU and determines the strategy, directions, and perspectives of integration development.9 The Intergovernmental Council consists of the heads of Member State governments10 and is largely responsible for realization and control of compliance with the Treaty, other international treaties within the EAEU framework, and decisions of the Supreme Council.11 The Commission—​the permanent regulatory body of the Union—​adopts decisions that are directly applicable in territories of Member States.12 It must be mentioned that World Trade Organization (WTO) law plays a special role in the EAEU legal order, albeit that not all Member States have joined the WTO, and the EAEU itself is not a party to WTO agreements. The initial plan back in 2009 during the EURASEC period was for Belarus, Kazakhstan, and Russia to join the WTO as a Customs Union.13 Instead, they opted for special arrangements to accommodate WTO law within the EURASEC legal order, which are now part of EAEU law. Annex 31 to the EAEU Treaty attaches the Protocol on the Functioning of the EAEU within the Multilateral Trading System to the EAEU Treaty.14 It refers to the Treaty on the Functioning of the Customs Union within the Multilateral Trading System concluded on 19 May 2011,15 essentially extending its validity and introducing it into the EAEU legal framework. It follows from this protocol that the WTO Agreement is part of the law of the Union that is covered by the exclusive competence of the EAEU, on the conditions of the first Member State acceding to the WTO, meaning Russia. Further, upon accession of other Member States to the WTO, their obligations also become part of Union law. This means that even Member States that are not part of the WTO are bound by WTO legal norms (although there are caveats). Moreover, WTO law has priority over Union law until the latter is amended to comply with the former.16 In the case of conflict of WTO agreements with EAEU law, WTO agreements prevail.

9 ibid Art 10. 10 ibid Art 14. 11 ibid Art 16. 12 EAEU Treaty, Annex 1, ‘Regulation on the Eurasian Economic Commission’, para 13. 13 See eg Jonathan Lynn, ‘WTO in Confusion after Russia Customs Union Plan’ (18 June 2009) accessed 29 April 2020. 14 EAEU Treaty, Annex 31, ‘Protocol on the Functioning of the Eurasian Economic Union within the Multilateral Trading System’. 15 Treaty on the Functioning of the Customs Union in the framework of the Multilateral Trading System, adopted by the Decision of the Interstate Council of the Eurasian Economic Community no 87 of 19 May 2011. 16 ibid Art 2(1).

THE INFLUENCE OF THE CJEU ON THE EEU  57

2. EAEU judiciary The EAEU Treaty also establishes a new permanent judicial body.17 The main objective of the EAEU Court is to ensure uniform application of EAEU law by the EAEU Member States and institutions.18 Albeit the issue of succession is somewhat blurred, in practice, the new Court has replaced the judicial body of the now defunct EURASEC. Initially, the idea was to ensure legal succession between the two courts, which would include the legal procedure and the judges: the EAEU Court would be a successor to the EURASEC Court regarding competences in dispute resolution within the Customs Union and Single Economic Space; the judges would continue performing their functions in the new Court until the end of their term.19 However, ideas on both succession of judges and competences were dropped,20 and the succession was reduced to a provision that the case law of the EURASEC Court remained in force.21 In one of its judgments, the EAEU Court held that the legal positions formulated in the judgments of the EURASEC Court may be used as stare decisis.22

a. Composition of the EAEU Court The EAEU Court consists of two judges per Member State (proposed by the latter) appointed by the Supreme Council.23 The term of office of judges has been increased from six to nine years as compared to the Statute of the EURASEC Court,24 which is in line with some scholarly proposals regarding the international judiciary to introduce longer terms and exclude the possibility of re-​election in order to decrease dependence on their governments, whose support they would need to be re-​elected.25 As for the chair of the Court, the Statute provides for an election procedure by the judges subject to approval by the Supreme Council.26 17 EAEU Treaty, Art 8. 18 EAEU Treaty, Annex 2 ‘Statute of the Court of the Eurasian Economic Union’, para 2 (Statute of EAEU Court). 19 Tatyana N Neshataeva (ed), Evraziiskaia integratsiia: rol’ suda (‘Eurasian Integration: The Role of the Court’) (Statut 2015) 131. 20 ibid 143. 21 Dogovor o prekrashchenii deiatel’nosti Evraziiskogo ekonomicheskogo soobshchestva (‘Treaty on Discontinuation of the Eurasian Economic Community’) (10 October 2014), Art 3, para 3. Nevertheless, all the judges retained their positions. 22 ‘Legal Context’ section of Case CE-​1-​2/​2-​16 General Freight CJSC v Commission (Judgment of the Chamber of the Court, 1 May 2017) subpara 10  accessed 1 May 2020. 23 Statute of EAEU Court, paras 7, 10. 24 ibid para 8; Statut Suda Evraziskogo ekonomicheskogo soobschestva [Statute of the Court of the Eurasian Economic Community], adopted by the Decision of the Intergovernmental Council of the Eurasian Economic Union (at the level of heads of state) No 502 of 5 July 2010 (Statute of EURASEC Court), para 3  accessed 3 June 2020. 25 Ruth Mackenzie and Philippe Sands, ‘Judicial Selection for International Courts:  Towards Common Principles and Practices’ in Kate Malleson and Peter H Russell (eds), Appointing Judges in an Age of Judicial Power: Critical Perspectives from around the World (University of Toronto Press 2006). 26 Statute of EAEU Court, para 15.

58  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The requirements for judges are that they should be of high moral character, highly qualified in the field of international and domestic law, and should normally—​although not exclusively—​meet the requirements applicable to judges of the highest judicial authorities of the Member States.27 That being said, most judges of both the EAEU and EURASEC courts have only a national educational background and work experience in national judiciaries (although often in the top national courts).28 Furthermore, most judges do not speak English or other foreign languages.29 Here is where advisors come into play. There are two types of advisor in the EAEU Court: advisor to a judge and advisors within the Secretariat of the Court.30 A special role is played by the advisor to a judge, an official of the Court tasked with providing information and analytical support.31 It is particularly required by the Statute of the Court that an advisor be an experienced specialist in international law. The tasks of the advisor include, for example, drafting analysis of the case law of international courts, informing the judge on regulatory framework of regional economic integration, and participation in international conferences, round tables, and seminars on issues of regional economic integration.32 More specifically, among recent advisors there are scholars experienced in EU law. Thus, the former advisor to judge Kolos—​Elena Babkina—​has for a long time been the head of the International Private and European Law Department at the Belarusian State University, also with previous experience of working in another international judiciary—​the Economic Court of the Commonwealth of Independent States.33 The position of advisor to a judge was also available in the EURASEC Court and, in fact, was more akin to that of Advocate General in the European Court of Justice (ECJ). In particular, an advisor to a judge rapporteur analysed case law, prepared materials on the case law of international and national courts, drafted the findings,34 and presented the findings during the oral stage of proceedings.35 One of the major differences with Advocates General, however, was that the advisor did not provide the EURASEC Court with an opinion on the case.36 This special 27 ibid para 9. 28 Biographies of currently sitting judges are available on the official website of the EAEU Court accessed 1 May 2020. 29 Based on conversations with representatives of the Court. 30 There are no legal clerks in the EAEU Court. 31 Statute of EAEU Court, para 30. 32 Regulation on the Secretariat of a judge of the Court of the Eurasian Economic Union, Annex No 2 to the Rules of organization and functioning of the Court of the Eurasian Economic Union, adopted by the Order of the President of the Court of the Eurasian Economic Union No 8 of 14 April 2015, Part 2(3) (Reg EAEU Court). 33 See accessed 29 April  2020. 34 Rules of Procedure of the Court of the Eurasian Economic Community on reviewing applications from economic entities, adopted by the Decision of the Court of the Eurasian Economic Community No 12 of 22 May 2012, Art 10(2) and 31(4) (Rules of Procedure of EURASEC Court). 35 ibid Art 11(3) and 33(4). 36 Neshataeva (n 19) 226.

THE INFLUENCE OF THE CJEU ON THE EEU  59 function of an advisor to a judge rapporteur has not been retained in the EAEU Court. However, as mentioned, the advisor still analyses the case law of international courts for their judge and provides them with the results thereof.37 The second type of advisor works within the Secretariat of the Court. One task of the Secretariat is to provide legal support for the Court’s activities.38 Of particular interest is the expert and analytical department of the Secretariat, which consists of advisors and consultants,39 who are, notably, required to have good command of foreign languages (English, French, and others).40 One task of the department is to provide reports on the case law of other judiciaries: supranational, international, and national.41 For instance, one advisor working at the Secretariat has a strong EU law background—​Kirill Entin is a graduate of the College of Europe, Bruges Campus, where he studied in the European Legal Studies Department and also has experience of traineeship at the CJEU. He eventually defended his PhD on EU competition law and continued teaching EU law in Moscow.42 It must also be noted that the judges, their advisors, and the advisors within the Secretariat actively participate in international conferences, seminars, and other events. They also sporadically organize visits to other international courts, including the CJEU, where they meet with their counterparts.

b. Structure of the Court The EAEU Court is composed of the Grand Panel, the Panel, and the Appeals Chamber,43 which has the same structure as in the EURASEC Court.44 The Grand Panel consists of all judges of the Court, that is, two judges per Member State; it hears disputes between Member States and delivers advisory opinions. The Panel consists of three judges and hears the majority of cases. The EAEU Court has an independent Appeals Chamber, the competence of which is the second instance for the Panel of the Court. The way the Appeals Chamber is formed is left the same as in the EURASEC Court: one judge per Member State, who did not take part in the first-​instance proceedings. Thus, there is a constant rotation of judges—​the same 37 Reg EAEU Court, Part 2(3). 38 Statute of EAEU Court, para 25. 39 Overall number of employees and structure of the Court of the Eurasian Economic Union adopted by the Decision of the Supreme Eurasian Economic Union no 81 of 10 October 2014. 40 See eg vacancy requirements at accessed 29 April 2020. 41 Regulation on the Secretariat of the Court of the Eurasian Economic Union, Annex No 1 to the Rules of organization and functioning of the Court of the Eurasian Economic Union, adopted by the Order of the President of the Court of the Eurasian Economic Union No 8 of 14 April 2015, Part 3(1). 42 See accessed 1 May 2020. 43 Statute of EAEU Court, para 70. 44 Statute of EURASEC Court, Art 24; Dogovor ob obrashchenii v Sud Evraziiskogo ekonomicheskogo soobshchestva khoziaistvuiushchikh sub’ektov po sporam v ramkakh Tamozhennogo soiuza i osobennostiakh sudoproizvodstva po nim (‘Treaty on access to the Court of the Eurasian Economic Community of economic entities on issues within the Customs Union and specifics of legal proceedings’) (9 December 2010) Art 24. Reglament Suda po rassmotreniiu obraschenii khoziaistvoiuschikh sub’ektov (‘Rules of Procedure of the EURASEC Court’) Arts 6–​9.

60  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES judges, but in different cases, can be members of the Panel of the Court and the Appellate Panel. The EAEU Court can establish specialized groups when examining particular disputes.45 These groups consist of three experts, one from each list submitted by each Member State for the respective type of dispute. The aim of specialized groups is to submit a report containing an unbiased assessment of the facts of the case to the Court. Such opinions are not binding, except in certain cases.46

c. Procedures and standing The Statute of the EAEU Court establishes that the Court can deliver binding judgments on issues arising from the implementation of Union law.47 More specifically, both Member States48 and economic entities49 can raise issues concerning compliance of decisions of the permanent regulatory body—​the Commission—​with Union law, as well as challenge Commission action or failure to act. Retaining the ability of economic entities to challenge the Commission before the Court is a feature that was kept from the EURASEC times. However, only Member States can raise issues concerning compliance of international agreements within the EAEU with the EAEU Treaty, compliance of other Member States with Union law, and compliance of Commission decisions with Union law.50 Moreover, the locus standi of economic entities when challenging Commission decisions is stricter. Thus, there are two conditions for economic entities to fulfil:  (i) direct concern (Commission decision or provisions thereof must directly affect ‘the rights and legitimate interests of the economic entity in the sphere of business and other economic activities’); and (ii) violation of rights (they must entail ‘a violation of any rights and legitimate interests of the economic entity envisaged by the Treaty and/​or international agreements within the Union’).51 It is argued, however, that in practice the locus standi of an economic entity includes only the first requirement.52 45 Statute of EAEU Court, para 82. Topics of disputes are listed as provision of industrial subsidies, agricultural state support measures, application of safeguard, anti-​ dumping, and countervailing measures. 46 ibid paras 90, 92. 47 ibid paras 39, 99, 100. 48 Member States can also authorize state authorities and organizations to make a request to resolve a dispute or make a request for clarification, see Statute of EAEU Court, para 49. 49 The EAEU Treaty defines an ‘economic entity’ or ‘market participant’ as a ‘commercial organization or a non-​profit organization operating with generation of profit, an individual entrepreneur, as well as a natural person whose professional income-​generating activities are subject to state registration and/​or licensing under the legislation of the Member States’ (EAEU Treaty, Annex 19, ‘Protocol on General Principles and Rules of Competition’, para 2(20)). However, the Statute of the Court has its own definition of an economic entity: ‘a juridical person registered under the legislation of a member state or a third State or a natural person registered as an individual entrepreneur in accordance with the legislation of a member state or a third State’ (para 39(2)). 50 Statute of EAEU Court, para 39. 51 ibid para 39(2), alinea 1. 52 Ekaterina Diyachenko and Kirill Entin, ‘The Court of the Eurasian Economic Union: Challenges and Perspectives’ (2017) 5(2) RLJ 70.

THE INFLUENCE OF THE CJEU ON THE EEU  61 EAEU Court

Infringement proceedings

Challenges of Commission decisions

Challenges of Commission actions or omissions

Challenges of international agreements within the Union

Advisory opinions

Fig 4.1  Avenues to the EAEU Court Source: Author’s own research based on the Statute of the EAEU Court.

These EAEU remedies broadly correlate with the EU’s direct actions: infringements,53 actions for annulment,54 and failure to act,55 albeit there are no equivalents to the EU’s actions for damages56 or pleas of illegality.57 All direct actions before the EAEU Court lead to binding judgments.58 In addition to direct actions, the Court has competence to provide non-​binding clarifications of EAEU law provisions upon the request of Member States, bodies of the Union, or EAEU civil servants.59 Dissenting opinions are allowed,60 and the judges actively exploit this opportunity.61 An overview of the various procedural avenues to the EAEU Court is shown in Figure 4.1. The Statute of the EAEU Court lists sources of applicable law for the purposes of administration of justice, which is wider than the list provided in Article 6 of the EAEU Treaty discussed in section B.1 above. In addition to those sources of law unique to the EAEU, it adds such sources of international law as: 1. Generally recognized principles and regulations of international law. 2. International treaties to which the states that are parties to the dispute are parties. 3. International custom as evidence of general practice accepted as a legal norm.62

53 Consolidated version of the Treaty on the Functioning of the European Union OJ C202 of 7 June 2016 (TFEU) Arts 258–​259. 54 ibid Art 263. 55 ibid Art 265. 56 ibid Arts 268 and 340(2). 57 ibid Art 277. 58 Statute of EAEU Court, paras 99, 100. 59 ibid para 49. 60 Rules of Procedure of the Court of the Eurasian Economic Union, adopted by the Decision of the Supreme Eurasian Economic Council No 101 (23 December 2014), Art 79  accessed 29 April 2020. 61 They give dissenting opinions not only to judgments and advisory opinions, but also to resolutions dismissing the case; see eg Case SE-​2-​1/​3-​17-​BK Customs Duties (Dissenting Opinions of Neshataeva J and Chaika J, 17 January 2018). 62 Statute of EAEU Court, para 50.

62  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES This additional list of sources corresponds to a widely accepted list of sources established in Article 38(1) of the Statute of the International Court of Justice (ICJ).63 Essentially, it integrates sources of international public law with the EAEU legal order, although not formally making them part of the ‘law of the Union’. Interestingly enough, the list avoids the last point of the enumeration of sources: ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for determining rules of law’. Some international law scholars indeed separate the last point by giving it the role of verifying the rules, rather than establishing them.64 However, others rightly point out that such a distinction is often hard to make, given the fact that, for instance, ICJ judgments may create law in the process of interpreting existing law.65 Nevertheless, the EAEU Court, as well as its predecessor the EURASEC Court, show an abundance of references to the case law of the CJEU. As one of the interviewees from the EAEU Court opined, the CJEU is closer to the EAEU Court in terms of competence, as compared to other international tribunals, and many pertinent issues have already been resolved there.66

C.  Citation of CJEU Decisions in EAEU Case Law 1.  The sources used Decisions of the EAEU Court are published on its official website67 and the EAEU Legal Portal.68 However, the main database that has been used for this research is the ConsultantPlus proprietary system,69 for it has better tools to work with the text, eventually leading to easier text mining. However, the system is not without deficiencies, and sometimes lacks certain information, so the work has been cross-​ checked with the EAEU Court website, given that it is the official venue for publication of case law. One of the sources of qualitative information consisted of interviews and informal conversations with representatives of the EAEU Court. The interviews were conducted primarily for the purpose of clarifying certain features of the EAEU legal order and approaches to their interpretation. Even though, as mentioned in 63 See eg Malcolm N Shaw, International Law (6th edn, CUP 2008) 70‒71; Ian Brownlie, Principles of Public International Law ( 6th edn, OUP 2003) 5; Manley O Hudson and Bureau of International Research of Harvard University and Radcliffe College, The Permanent Court of International Justice: A Treatise (Macmillan 1934) 601 ff. 64 See eg Georg Schwarzenberger, International Law, 3 vols (3rd edn, Stevens & Sons 1957) 26‒27. 65 See eg Shaw (n 63) 71. 66 Interview 3, EAEU Court official, 14 April 2017. 67 See accessed 29 April 2020. 68 See accessed 29 April 2020. 69 See accessed 29 April 2020.

THE INFLUENCE OF THE CJEU ON THE EEU  63 section B above, the judges are allowed to deliver dissenting opinions, such a public expression of their views does not necessarily always reflect all of their thinking. Moreover, the views of the advisors also needed to be heard. Therefore, a number of semi-​structured anonymized interviews were conducted on different levels of the Court: with an advisor within the Secretariat of the Court, an advisor to a judge, and judges of the Court. Multiple informal conversations also took place on various occasions, in particular at international conferences.

2.  Presentation of the findings The findings are summarized in Table 4.1 below. The two central columns reflect the situation of the two courts, as well as two time periods. The EURASEC Court functioned for exactly three years from 1 January 2012 through to 31 December 2014. The EAEU Court started functioning on 1 January 2015, and the information for this study was collected for the four years that followed. The rows are divided into two main sections. Since few cases were decided during this period, the first section shows the overall number of judgments, advisory opinions, and dissenting opinions.70 The regular number in each square indicates the number of decisions issued by the corresponding court which cites CJEU judgments. The number in parenthesis next to this number indicates the number of such judgments or different rulings that were cited in these decisions. For instance, the number 3 (8) that appears in the column for the EAEU Court (2015–​18) means that three decisions of the EAEU Court cited CJEU judgments, and a total of eight CJEU cases was cited in these decisions. The footnotes next to the numbers in Table 4.1 list the Eurasian judiciary’s decisions that make up these numbers, with the number of CJEU cases that were counted in each one of them in parenthesis. The low overall number of decisions can be explained by many factors, among which are the relatively recent establishment of the courts, limits of competence of the courts and the international organizations they are part of in general, low awareness of economic actors about the courts and possibilities within them, and a relatively high number of dismissals of applications (due to lack of jurisdiction, mistakes in applications, amongst other reasons). Nevertheless, analysis of Table 4.1 shows quite a remarkable picture: • The number of all judgments, advisory opinions, and dissenting opinions citing CJEU case law is rather similar for the EURASEC and EAEU Court (taking into 70 Dissenting opinions are part of judgments, and often there are several dissenting opinions in one judgment. I count dissenting opinions separately as, eg, doing so allows one to distinguish whether CJEU citations were part of the majority decision or only the minority dissenting opinion.

64  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Table 4.1  EAEU: Number of judgments and advisory and dissenting opinions where CJEU decisions were cited (2012–​18) (number of citations in brackets) Court:

EURASEC Court

EAEU Court

Period:

2012–​14

2015–​18

Overall number of judgments

21

10

31

Overall number of advisory opinions

0

10

10

Overall number of dissenting opinions

3

19

22

Number of judgments citing the CJEU

6 (33)1

3 (8)2

9 (41)

Number of advisory opinions citing the CJEU

0

4 (10)3

4 (10)

Number of dissenting opinions 2 (2)4 citing the CJEU

6 (21)5

8 (23)

Total citing by courts:

13 (39)

Absolute total citing: 21 (74)

8 (35)

Total

Source: Author’s own research from access to official and commercial databases. 1 Case 2-​4/​2-​2014 (1-​7/​5-​2013) Dzhekpot v Commission (21 October 2013) (3); Dzhekpot v Commission (Appeal, 11 February 2014) (5); Case 2-​4/​3-​2014 Graphite India v Commission (24 March 2014) (9); Case 2-​4/​7-​2014 Zabaikalresurs v Commission (20 April 2014)  (11); Case 2-​4/​8-​2014 Flex-​n-​roll v Commission (27 October 2014) (4); Flex-​n-​roll v Commission (Appeal, 29 December 2014) (1). 2 Case SE-​1-​2/​2-​15-​KS Tarasik v Commission (28 December 2015) (1); Case SE-​1-​2/​2-​16-​KS General Freight v Commission (4 April 2016) (3); Case SE-​1-​2/​2-​16-​AP General Freight v Commission (Appeal, 21 June 2016) (4). 3 Case SЕ-​2-​2/​1-​17-​BK Commission Employment (Opinion, 12 September 2017) (1); Case SE-​2-​2/​2-​17-​BK Internal Market Exceptions (Opinion, 30 October 2017) (2); Case SE-​2-​3/​1-​16-​BK Kuznetsova and others (Opinion, 3 June 2016) (3); Case SE-​2-​2/​5-​18-​BK Professional Athletes (Opinion, 7 December 2018) (4), 4 Case 1-​6/​1-​2013 Tour Trans Company (Dissenting Opinion of Smirnov J, 10 July 2013) (1); Tour Trans Company (Dissenting Opinion of Neshataeva J, 10 July 2013) (1). 5 Case SE-​1-​1/​1-​16-​BK Russia v Belarus (Kaliningrad Transit) (Dissenting Opinion of Kolos J, 21 February 2017) (4); Russia v Belarus (Kaliningrad Transit) (Dissenting Opinion of Chaika J, 21 February 2017) (6); Russia v Belarus (Kaliningrad Transit) (Dissenting Opinion of Neshataeva J, 21 February 2017) (1); Case SE-​1-​2/​4-​16-​KS ArcelorMittal Kryvyi Rih v Commission (Dissenting Opinion of Chaika J, 24 April 2017)  (7); Case SE-​1-​2/​4-​18-​KS Oil Marine Group (Dissenting Opinion of Baishev J, 11 October 2018) (2); Case SE-​2-​1/​3-​18-​BK International Transportation of Money (Dissenting Opinion of Chaika J, 15 October 2018) (1).

account that in the latter case a four-​year period was analysed, compared with a three-​year period in the former)—​eight and thirteen, respectively. The number of CJEU cases cited is also similar—​thirty-​five and thirty-​nine, respectively. • The share of judgments citing CJEU case law is roughly the same in both courts—​about one in three. However, the number of cases cited in judgments

THE INFLUENCE OF THE CJEU ON THE EEU  65 is much larger in the EURASEC Court than in the EAEU Court—​thirty-​three as against eight. Even if we make adjustments taking into account that the number of judgments citing CJEU case law delivered by the EAEU Court is half of that of the EURASEC Court, the latter still comes out with a number about two times higher. Nevertheless, the numbers even out if all other types of acts are taken into account. • The share of decisions citing CJEU case law is not much greater within the advisory opinion procedure, where the EAEU Court cited CJEU case law in four out of ten decisions. The EURASEC Court delivered only one advisory opinion during the time of its existence, where it did not cite CJEU case law. • The absolute total of judgments, advisory, and dissenting opinions citing CJEU case law is one-​third of all such acts adopted by the two courts (twenty-​ one out of sixty-​three). Figure 4.2 below shows the pattern of CJEU citation by both courts over the years. It discloses that the EURASEC Court was much faster in introducing CJEU case law in its work, although this practice diminished during the last year of its existence. When interpreting these results, one must take into account a number of factors, among which are the following: • The number of judges of the two courts is different. Thus, two new Member States joined the EAEU at different times, almost doubling the number of judges. 35 30

No of citations

25 20 15 10 5 0 2011

2012

2013

2014

2015

2016

2017

Year

Fig 4.2  CJEU citation over the years 2012–​18 by EAEU Court Source: Author’s own research from access to official and commercial databases.

2018

2019

66  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES • The degrees of integration of the EURASEC and the EAEU are different, the latter covering increasingly larger fields of law. • The competence has changed, and the procedures differ. • Certain attitudes of the judges are different. The complexity of these factors does not allow us to say how they influence citation of CJEU case law. Each of them taken on its own might give a hint as to who would be more prone to such activities. However, taking them all into account may even lead to evening out such a possibility. Further, explanations depend on the judges who sit on the bench in the case of three-​judge panels. Usage of CJEU case law can also depend on the advisors to the relevant judges and the advisors at the Secretariat assigned to this or that case. In any event, the final decision still lies with the judge, and their willingness to use such sources. This is also the case when decisions are made by Grand Panels (advisory opinions and state-​versus-​state disputes); that is, the ability of judges to introduce CJEU case law and persuade others about it. This would require additional research into specific patterns of individual judges. Of course, it goes without saying that relevant case law must in fact exist and its usage must be warranted in certain situations, in particular when the issue at hand is indeed complex and unclear.

3.  Fields of law where the CJEU was cited Table 4.2 and Figure 4.3 below show the fields of law which the EURASEC and EAEU Courts have dealt with so far. Where the EURASEC and EAEU Courts cited Table 4.2  EAEU: Citations from CJEU decisions according to fields of law (2012–​18) EURASEC Court

EAEU Court

Total

Customs law

7

8

15

Antidumping

1

1

2

Free movement of goods

0

1

1

Free movement of workers

0

1

1

Staff regulations and employment conditions

0

2

2

Competition law

0

0

0

Constitutional law

0

0

0

Source: Author’s own research from access to official and commercial databases.

THE INFLUENCE OF THE CJEU ON THE EEU  67 10% Customs Law

5% 5%

Antidumping

9%

Free movement of goods Free movement of workers 71%

Staff regulations and employment conditions

Fig 4.3  Citations of CJEU decisions by both EAEU courts according to fields of law (2012–​18) Source: Author’s own research from access to official and commercial databases.

CJEU case law in relation to only one field of law, the decision of the Eurasian judiciary that cited it will be counted once under this field of law, regardless of how many CJEU cases it cited in such a field. No documents cited CJEU cases in relation to more than one field of law. It is clear from Table 4.2 and Figure 4.3 that customs law dominates the citing pattern. The reason for that is simple: customs was the first major field of exclusive competence to be transferred to the supranational level in EURASEC and the EAEU. This has also been confirmed by the EAEU Court, which ruled that general rules regulating the functioning of the Customs Union (as well as general rules regulating the functioning of the internal market of goods) fall under the common policy.71 Therefore, the majority of cases citing CJEU case law both in the EURASEC Court and EAEU Court concern companies challenging decisions of the Eurasian Economic Commission in the customs field. The issues are devoted to classification of goods under the commodity nomenclature, imposition of duties, and the like. The ‘antidumping’ row could also be generally classified under customs law. The difference here is that the antidumping cases concerned companies established outside the legal orders of Member States: the case dealt with by the EURASEC Court concerned an Indian company72 and the EAEU Court’s case concerned a Ukrainian company.73 Although there has been only one advisory opinion delivered on competition law during the study period, and it did not cite any CJEU cases,74 there is considerable potential for the EAEU Court to exercise judicial control in the field. There are 71 Internal Market Exceptions (Opinion, 30 October 2017) (n 7). 72 Case 2-​4/​3-​2014 Graphite India v Commission (24 March 2014). 73 Case SE-​1-​2/​4-​16-​KS ArcelorMittal Kryvyi Rih v Commission (Dissenting Opinion of Chaika J, 24 April 2017). 74 Case SE-​2-​1/​1-​17-​BK Vertical Agreements (Opinion, 4 April 2017).

68  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES two cumulative reasons for that. First, CJEU case law on competition law is very well developed and rather innovative. Second, competition in cross-​border markets is also part of the exclusive competence of the EAEU, which follows from the EAEU Court’s interpretation of this policy area in the Vertical Agreements advisory opinion.75 Indeed, the Eurasian Economic Commission has the powers to monitor, investigate, and establish anticompetitive behaviour in cross border markets. Two departments of the Commission are responsible for this—​the Department for Antitrust Regulation and the Department for Competition Policy and Public Procurement Policy—​overseen by the Minister in charge of Competition and Antitrust regulation.76 Although it has dealt only with a handful of cases and did not cite any CJEU judgments, there is potential for this, again, because of the developed state of the field in the EU. The only case under the ‘free movement of goods’ rubric concerned interpretation of the treaty article on defences to discriminatory measures (that is, public morality, public security, protection of health and life of humans, and the like).77 The staff regulations and employment conditions cases concerned Eurasian Economic Commission employees.

4.  The impact of CJEU decisions cited It is not easy to estimate the impact of the CJEU case law that was cited on the final rulings of the EAEU and EURASEC Courts that cited them, and this always depends on subjective interpretation.78 In order to try to get an idea of the actual impact that CJEU case law could have had, a coding system of 1 to 5 has been used based on the following criteria: ‘1’ ― ‘Not at all’. This refers to a situation where the CJEU case had no impact on the final outcome, for instance because the EAEU or EURASEC Court decided not to adopt the CJEU’s approach, or that the CJEU ruling was not relevant to the issue at hand. ‘2’ ―‘Marginally’. This refers to situations where the CJEU case(s) had only a marginal impact on the final ruling, for instance because it was cited in relation to a peripheral issue or as a general background, or where the

75 ibid. 76 See accessed 29 April  2020. 77 Internal Market Exceptions (n 7) (Opinion). 78 It must be noted that this research relies only on express citations of CJEU case law. However, it does not mean that express citation is the only and ultimate indicator of influence. Approaches can be borrowed or relied upon even without expressly citing sources for various reasons, eg to establish the court’s own authority and credibility, to reduce (the perception of) overreliance on foreign judiciary, etc.

THE INFLUENCE OF THE CJEU ON THE EEU  69 CJEU case was cited in a dissenting opinion which was not adopted by the majority. ‘3’ ―‘Partially’. This refers to a situation where some correlation exists between the CJEU case(s) and the final ruling of the EAEU or EURASEC Court, but only to a partial degree and where it seems that the CJEU rulings did not play a central role in leading the court to its final ruling, for instance because many other legal sources supported this final ruling. ‘4’ ―‘To a large extent’. This refers to where considerable correlation exists between the CJEU case(s) and the final ruling of the EAEU or EURASEC Court, and it seems that this case was one of the legal sources that led the court to its ruling. ‘5’ ―‘Decisively’. This code was given to decisions where considerable correlation exists between the CJEU case(s) and the final ruling of the EAEU or EURASEC Court, and it appears that the CJEU case(s) had a decisive influence on the court’s ruling, especially when it is clear that the Eurasian judiciary adopted the CJEU’s approach or doctrine. Figure 4.4 below shows the general overview of impact of the cited CJEU case law on the decisions of both courts. The EAEU Court has underlined that: The legal position and case law of other courts can be taken into account when deciding analogous issues, which corresponds to the principle of persuasive

9 8

No of citations

7 6 5 4 3 2 1 0

1—Not at all

2—Marginally

3—Partially

EURASEC Court

4—To a large extent EAEU Court

Fig 4.4  EAEU: The relative impact of CJEU decisions cited Source: Author’s own research from access to official and commercial databases.

5—Decisively

70  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES precedent, according to which certain judicial decisions and points of view expressed therein do not create precedent on their own, but are taken into account when issuing future judicial decisions.79

Nevertheless, analysis of the references to CJEU case law shows that at least two decisions can be coded as 5; that is, CJEU case law’s influence was decisive, including in the way that its doctrine was adopted by the citing court. One of these cases, the General Freight case, is discussed in section D. Table 4.1 shows that judges cite CJEU case law in their dissenting opinions. Although coded as 2 and having a marginal effect on the respective case, it can have increased effect on the development of case law. Indeed, judges make claims in their dissenting opinions which, at times, go too far to be accepted and integrated into the majority opinion for various reasons at that moment in time. One such advisory opinion is discussed in section D. One case was particularly troublesome to code: it could be coded as either 1 or 5, depending on the interpretation one gives (to be on the safe side—​it was coded as 3). This is also discussed in section D. Nevertheless, as some current and former judges say, the CJEU is a clear choice for inspiration in the practice of the Eurasian judiciary.80

D.  From Macro to Micro: Presentation of Some Important Judgments 1. The General Freight case The General Freight case is an example of the EAEU Court’s ruling that has led to embracing an EU law doctrine developed by the ECJ. Closed joint-​stock society General Freight filed an application with the EAEU Court for declaring the decision of the Eurasian Economic Commission of July 18, 2014 No 117 ‘On classification of “chiller” refrigeration machines according to the Foreign Economic Activity Commodity Nomenclature of the Customs Union’ as violating international agreements within the EAEU. According to the claimant, the ‘chiller’ refrigeration machine was classified under the wrong heading of the Foreign Economic Activity Commodity Nomenclature. In its judgment of 4 April 2016,81 the three-​judge panel of the EAEU Court relied on ECJ case law82 as ‘established international judicial practice’ to hold that the 79 Case SE-​1-​2/​2-​15-​KS, Tarasik v Commission (28 December 2015). 80 Informal discussions. 81 Case SE-​1-​2/​2-​16-​KS, General Freight v Commission (4 April 2016). 82 Case C-​183/​06 RUMA [2007] (ECLI:EU:C:2007:110); Case C-​ 339/​ 09 Skoma-​Lux, [2010] (ECLI:EU:C:2010:781); Case C-​173/​08 Kloosterboer Services BV [2009] (ECLI:EU:C:2009:382).

THE INFLUENCE OF THE CJEU ON THE EEU  71 objective criterion for classifying goods is their supposed designation, which is to be assessed based on its objective characteristics and properties. After having analysed these, the Panel found no wrongdoing on the part of the Commission. The Appeal Panel upheld this decision in its judgment of 21 June 2016.83 In addition, it clarified the use of an international agreement, which did not fall under Union law; that is, the International Convention on the Harmonized Commodity Description and Coding System of 1983. Essentially, the Court adopted the ECJ doctrine by concluding that the EAEU is bound by an international agreement if two conditions are met: (i) all Member States are parties to it; (ii) the agreement pertains to the field of EAEU common policy.84 Thus, in the General Freight case the Court ruled that the agreement in question ‘shall be applied along with Union law to regulate the customs and tariff relations within the EAEU’.85

2.  Tarasik v Commission The case of Tarasik v Commission86 is an example of a judgment where the EAEU Court cited and analysed the ECJ’s interpretation but seemingly decided to act in a different manner. It is, however, not clear whether this was done willingly, by adopting a different approach, or unwillingly, by misunderstanding the interpretation. The case concerned the Commission’s alleged failure to act with regard to its duty to ensure realization of international agreements that form the legal basis of the Customs Union, and to conduct monitoring and control implementation of such international agreements and Commission decisions. The applicant concluded that such failure to act led to a dispute with the customs authority of Kazakhstan. In formulating its position towards failure to act, the Court invoked the general legal understanding of an (illegal) failure to act and referred to national judicial practice of the Russian Federation. It further turned to CJEU case law, citing the so-​called Comitology case: ‘A refusal to act, however explicit it may be, can be brought before the Court [ . . . ] since it does not put an end to the failure to act.’87 The Court came to the conclusion that: in general, ‘improper failure to act’ means lack of action or improper action by the supranational body (official) of the duties assigned to it by Union law, in 83 Case SE-​1-​2/​2-​16-​AP General Freight v Commission (Appeal, 21 June 2016). 84 General Freight (n 82). The EAEU Court referred to the following case law:  Cases 21-​24/​72 International Fruit Company [1972] (ECLI:EU:C:1972:115); Case C-​308/​06 Intertanko and others [2008] (ECLI:EU:C:2008:312); Case C-​301/​08 Bogiatzi [2009] (ECLI:EU:C:2009:649); Case C-​188/​07 Commune de Mesquer [2008] (ECLI:EU:C:2008:359). 85 General Freight (n 81), ‘Legal Context’ section; General Freight (n 83) (Appeal) para 5.1.1. 86 Tarasik (n 79). 87 Case 302/​87 Parliament v Council [1988] (ECLI:EU:C:1988:461) para 17. In the EAEU Court judgment it is cited as European Parliament v European Council.

72  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES particular leaving a request from an economic entity without consideration in whole or in part, a response to the applicant not on the merits of their request, if the consideration of this request falls within the competence of the supranational body (official).88

Going further, the Court stated that a negative response by the Commission can also be challenged as part of a failure to act ‘if pursuing the action requested by the applicant constitutes [the Commission’s] direct duty, which cannot be delegated to other persons (the so-​called “special duty”)’.89 It can be claimed that the Court misunderstood the CJEU’s approach to failure to act; however, Diyachenko and Entin maintain that the Court’s citation of the CJEU was only for the purposes of an example, and in fact constitutes an approach different from that of the CJEU due to a broader interpretation by the EAEU Court.90 The claim is that the broader choice of the EAEU Court renders failure-​to-​act actions more effective. Arguably, this is one way for the Court to compensate for the limited number of legal remedies.91 Diyachenko and Entin argue that the EAEU Court decided not to take the CJEU’s position, and rather to take an approach similar to that of EAEU Member States, since in the EU ‘once the institution comes with a clear position (even when it is a negative reply), the action has to be discontinued even if the institution gave the reply in the course of judicial proceedings’.92 Indeed, as the CJEU underlined, ‘[Article 265 TFEU] refers to failure to act in the sense of failure to take a decision or to define a position’93 (the latter, following the call on the institution to act). Unlike the quoted Comitology case, in other cases the CJEU considered refusal to comply as a definition of position.94 Indeed, the CJEU wrapped up by saying that ‘it follows from consistent case law that a decision to reject a complaint constitutes definition of a position’.95 Therefore the Comitology case rather stands alone in the CJEU’s case law, and does not fall in line for various reasons.96 Therefore, the EAEU Court, either by mistake or consciously, decided to follow early CJEU case law instead of its more contemporary practice.

88 Tarasik (n 79). 89 ibid. 90 Diyachenko and Entin (n 53) 59. 91 ibid 69. 92 ibid 59. 93 Case C-​258/​05 P(R) Makhteshim-​Agan and others v Commission [2005] (ECLI:EU:C:2005:663) (Order) para 14. 94 Case T-​66/​02 Institouto N Avgerinopouloy and others v Commisison [2004] (ECLI:EU:T:2004:74) para 33; Case T-​34/​05 R Makhteshim-​Agan and others v Commission [2005] (ECLI:EU:T:2005:147) (Order) para 70; Case 48/​65 Lütticke v Commission [1966] (ECLI:EU:C:1966:8); Case T-​28/​90 Asia Motor France and others v Commission [1992] (ECLI:EU:T:1992:98) para 37. 95 Case C-​211/​05 P Campailla v Commission [2005] (ECLI:EU:C:2005:760) (Order). 96 See more on that in Alexander H Türk, Judicial Review in EU Law, Elgar European Law (Edward Elgar 2009) 187‒88.

THE INFLUENCE OF THE CJEU ON THE EEU  73

3. The Kaliningrad Transit case This case is prominent in its own right, although the final judgment did not cite CJEU case law: it is the first case initiated by one Member State against another Member State, and it features peculiar argumentation of the EAEU Court, reinforcement of the principle of direct applicability, and establishment of priority of certain provisions of Union law.97 It also has a record number of dissenting opinions. One dissenting opinion is particularly relevant for this study as citing an important fundamental doctrine of EU law. The case was filed by Russia against Belarus in September 2016, claiming that Belarus was not fulfilling its obligations under the EAEU Treaty.98 The essence of the dispute was that the Belarusian customs authorities repeatedly detained and seized household appliances produced by Russian companies in Kaliningrad and transited via Lithuania and Belarus to mainland Russia. The Belarusian authorities did not recognize the relevant decisions and documentation of the Russian authorities, and upon checking the validity of the relevant documents, considered the goods as imported. The Court stated that one of the agreements applicable in this case, and which was part of Union law, was directly applicable and had priority in customs control. In essence, this means that the Member States have to follow this particular agreement, setting aside national rules which contradict it. The Court justified its finding by stating that the provisions of the relevant agreement have imperative character and do not have exclusions and references. According to the Court, actions by the Member States going beyond the requirements of Union customs legislation and having a broad character regarding interpretation of their rights, do not correspond to the principle of the functioning of the customs union and violate the freedom of movement of goods. This logic of the Court is one step short from recognizing the direct effect of these provisions; that is, the possibility for individuals to refer to these provisions in national courts. In a subsequent case, the Court extended this logic to competition law provisions.99 Judge Chaika, in his dissenting opinion to the Kaliningrad transit judgment, went further and stated that, by concluding the EAEU Treaty, Member States have created an ‘autonomous totality of legal norms, which are binding upon all Member States’. He came to this conclusion, essentially quoting the CJEU in Costa v ENEL, but with application to EAEU law: By creating the Eurasian Economic Union of unlimited duration, which is an international organization of regional economic integration, vested with

97

Case SE-​1-​1/​1-​16-​BK Russia v Belarus (Kaliningrad Transit) (21 February 2017).

99

Vertical Agreements (n 74) (Opinion).

98 ibid.

74  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES international legal personality according to Article 1(2) of the Treaty on the Union, and having its own system of institutions, Member States of the Union have transferred real powers, have limited their sovereign rights in strictly specific fields and created an autonomous totality of legal norms, which are binding upon all Member States.100

Referring to Costa v ENEL101 and Simmenthal,102 Judge Chaika noted that incorporation of Union law provisions into national legal systems makes it impossible for Member States to give national legal norms priority over Union law. He reinforced his point by adding that Union law is being created by Member States on condition of reciprocity. However, in our view, it is rather a point to reassure Member States that they are complying with Union law in their own interests, since others are doing the same. According to Chaika, the binding nature of Union law cannot differ from state to state depending on this or that national legal act in force or to be adopted in the future, which allows or directly provides for actions or decisions violating Union law. A different interpretation would make obligations under the EAEU Treaty not unconditional, but only possible, and depending on circumstances. The view went as far as using the word autonomous, akin to the doctrine of the autonomous legal order developed by the CJEU.103 What was not included in this view, however, is the ability of such law to bind not only Member States, but also nationals. At the same time, this is an essential part of an autonomous legal order, which is therefore, arguably, implied in the notion used: autonomous. The reason for not going as far as including actors among Member States could be the specifics of the case at hand, which was a dispute between Member States not involving other actors, and in order not to alarm Member States with these rather far-​reaching arguments.

E.  Changes in Judicial Powers At this stage, it is premature to assess the specific influence of CJEU case law on the EAEU regulatory framework. However, changes to the powers of the EAEU Court 100

Kaliningrad Transit (n 97) (Dissenting Opinion of Chaika J). Case 6/​64 [1964] (ECLI:EU:C:1964:66): By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which bind both their nationals and themselves. 102 Case 92/​78 Simmenthal v Commission [1979] (ECLI:EU:C:1979:53). 103 See René Barents, The Autonomy of Community Law (Kluwer Law International 2004).

101

THE INFLUENCE OF THE CJEU ON THE EEU  75 were introduced following certain practices of the EURASEC Court, which it tried to justify through references to the CJEU. One of the interviewees confirmed that it is a common view in the Court that excessive judicial activism on the part of the EURASEC Court has led to limitations of the powers of the EAEU Court.104 The first (and last) preliminary ruling the EURASEC Court delivered—​Case 1-​6/​1-​2013 Tour Trans Company (10 July 2013)—​had a crucial role in that (see below). Another interviewee confirmed that indeed, this preliminary ruling was the main reason for major changes in the Court’s competences.105 The EURASEC Court seemingly often went too far by ignoring the judicial task of persuasiveness: the authority of a court is derived not only from the binding nature of its judgments, but from its ability to be rationally persuasive (that is, able to persuade on the merits of its reasoning) or normatively persuasive (that is, convincing in a manner notwithstanding the merits of the assessment itself).106 This was not particularly the case in the preliminary ruling referred to above. A request for a preliminary ruling was almost immediately withdrawn by the referring court.107 Nevertheless, the EURASEC Court decided to open the proceedings as it had a right to reject the withdrawal,108 putting forward a rather peculiar argumentation: ‘as, if decided otherwise, it would not meet the requirements of procedural economy and might lead to an unjustified delay in adjudication of the case’.109 It is unclear how exactly procedural economy would be affected and why a delay would take place at all. It has been suggested in a text co-​authored by one of the judges involved in the case that this approach was taken from the ECJ’s Rules of Procedure (a draft at the time).110 The EURASEC Court’s statement can only be understood in light of the explanation given by the drafters of the ECJ Rules of Procedure, and particularly the following norm (in the formulation of the final version of the Rules of Procedure): ‘The withdrawal of a request may be taken into account until notice of the date of delivery of the judgment has been served on the interested persons.’111 This provision retains the right to deliver a judgment notwithstanding the withdrawal of a request for a preliminary ruling. The drafters explain this provision in terms of procedural economy: ‘since a number of similar cases may have been

104 Interview 4, EAEU Court official, 14 April 2017. 105 Interview 2, EAEU Court official, 14 April 2017. 106 Gleider Ignatio Hernández, The International Court of Justice and the Judicial Function (OUP 2014) 183. 107 Case 1-​6/​1-​2013, Tour Trans Company (Dissenting Opinion of Smirnov J, 10 July 2013). 108 Rules of Procedure of the Court of the Eurasian Economic Community, adopted by the Decision of the Court of the Eurasian Economic Community No 21 of 12 July 2012, Art 37(1)(v). 109 Tour Trans Company (n 107). 110 Neshataeva (n 19). 111 Consolidated version of the Rules of Procedure of the Court of Justice of 25 September 2012, OJ L265, 29 September 2012, as amended on 18 June 2013, OJ L173, 26 June 2013.

76  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES stayed, either by the [ECJ] or by national courts or tribunals, pending the forthcoming judgment’.112 In that case, not delivering a judgment could lead to dealing with every case that has been stayed, which would cause a delay in the progress of those cases. However, the drafters underlined that such a rejection of a withdrawal must happen ‘at a very advanced stage of the proceedings, when the date of delivery of the judgment has been communicated’, and when ‘the [ECJ’s] deliberations have been completed’. Conversely, in the case of the EURASEC Court, the withdrawal request was made at an early stage, only two weeks after the request for a preliminary ruling was accepted.113 As noted in the dissenting opinion of one of the judges, there was no proof of similar cases stayed in national courts pending the forthcoming judgment; and no proof that the proceedings before the referring court could be delayed.114 Claims such as lack of explanation of the withdrawal request and that the EURASEC Court had already involved a number of experts, do not seem to be enough. Therefore, it is more likely that the Court, having had its very first preliminary ruling request, not being overwhelmed with a heavy workload, and having a proactive stance, wanted to seize the opportunity and enforce its jurisdiction. A number of proactive provisions in the final ruling (eg that the ruling was ‘directly effective’ on the territory of all Member States) reinforce this position. It could have been done also to protect the rights of the legal entity that asked the Belarusian court to refer to the EURASEC Court in the first place.115 In any event, communication between the national and supranational institutions did not work out—​the EURASEC Court delivered a ruling that the referring court did not want; unsolicited advice of sorts. Far from arguing that this situation was the only reason, however, it is telling that no preliminary ruling procedure is now available in the EAEU Court.

F.  Summary and Conclusion This chapter has shown that the Eurasian judiciary has been rather actively taking into account CJEU case law. All in all, it has been found that twenty-​one judgments, advisory and dissenting opinions cited seventy-​four CJEU decisions. This constitutes one in three of all acts. Five main fields of law of these cases were identified:  customs law, antidumping, free movement of goods, free movement

112 Draft Rules of Procedure of the Court of Justice, ‘Comments to Art 101’ on file with the author. 113 The request for a preliminary ruling was accepted by the EURASEC Court on 22 April 2013; the applicant withdrew the request on 6 May, see ‘Reshenie Bolshoi kollegii Suda EvrAzES’ (‘Judgment of the Grand Chamber of the EURASEC Court’) (2013) 2 Bull EURASEC Court 7–​17 . The applicant repeatedly requested withdrawal on 21 June 2013. See Tour Trans Company (n 107) (Dissenting Opinion of Smirnov J). 114 Tour Trans Company (n 107). 115 ibid (Dissenting Opinion of Neshataeva J).

THE INFLUENCE OF THE CJEU ON THE EEU  77 of workers, and staff regulations and employment conditions. Given the developments in competition law, this field is soon expected also to make the list. As for the impact of such citing, it has been established that there are cases where the Eurasian judiciary adopts CJEU approaches, which have a decisive impact on rulings and, arguably, on the development of the law as such. Nevertheless, an overly active reliance on approaches of a foreign judiciary might prove to be problematic: as discussed in the chapter, excessive judicial activism on the part of the EURASEC Court might have been the reason for the cut in powers of its successor, the EAEU Court. The CJEU is arguably the most prominent and respected judicial institution of an international organization and it is closer to the EAEU Court in terms of competence than many other international tribunals. Indeed, many pertinent issues have already been resolved by the CJEU. Moreover, given that the EAEU was set up to achieve a common market, it is logical to look up to this particular court. However, the specifics of Eurasian integration must be taken into account. As time goes on, the Eurasian judiciary seems to have been able to strike certain balance and is taking a piecemeal approach to developing the legal order of the Union. It is in the interest of effective development of the EAEU legal order for the EAEU Court to look up to the best practices of the CJEU. The latter is a respected institution, with many years of experience. It is in the EAEU’s interest to learn from this experience, and it is in the EU’s interest to export its acquis. Nevertheless, the CJEU is hardly a perfect institution, as indeed many controversies around its decisions throughout its history suggest. In any event, its experience must be critically assessed and aligned with the specifics of Eurasian integration, with regard to the normative content of both Union law and practice. Implementation of certain mechanisms (eg preliminary rulings) and doctrines (eg direct effect), submerged in a different legal, historical, and cultural context, will not necessarily produce expected results. It could be found that certain institutional structures and sets of principles must be reassessed in order to provide for necessary innovations that could play a similar role in delivering necessary results. Introduction of this or that element must always be guided by its working efficiency. However, the approach should not be overcautious so as not to stifle legal innovations in an age of rapid technological changes, which go beyond national borders. As the aims of Eurasian integration evidently stretch outside national borders, supranational approaches must play their proper role, and CJEU experience is of primary interest for these purposes.

5

CJEU Citations in the Case Law of the Swiss Federal Supreme Court A Quantitative/​Qualitative Analysis Francesco Maiani*

A.  Introduction This chapter addresses the issue of how often, in what circumstances, and to what effect the Swiss Federal Supreme Court (FSC) refers to the case law of the Court of Justice of the European Union (CJEU) in interpreting domestic legislation and international agreements.1 I first provide background information about Switzerland, its legal system, and its judiciary (section B). In section C, I provide a concise account of the state of relations between Switzerland and the EU, with a focus on the international obligations and legislative policies that entail an approximation of Swiss law to EU law. I then examine the practice of citing CJEU precedent by the Swiss Federal Supreme Court. In section D, I present the leading cases laying down the main doctrines of ‘euro-​ compatible’ interpretation developed by the FSC over the past twenty years. I also connect them to earlier and later judgments so as to show the evolutionary character of these doctrines. This not only provides the reader with examples of ‘euro-​compatible’ interpretation in concrete cases, but also lays down the analytical groundwork allowing a full understanding of the quantitative data presented in section E. This section addresses the frequency of references to CJEU case law, disaggregated by years and by legal fields. It also goes in-depth on the legal rationale and impact of such references, attempting an explanation connecting the statistical findings to the doctrinal elements presented in section D. * Many thanks are due to Mélanie Chevalley and Ana Sijakovic-​Kressner, PhD candidates, for their precious research work. The chapter is dedicated to my dear friend and colleague Etienne Poltier, in grateful acknowledgement of many stimulating conversations, and in hopes that it will provide a suitable excuse for more of the same. 1 The choice of examining only the case law of the FSC has been made on grounds of feasibility explained below in section E.1. Francesco Maiani, CJEU Citations in the Case Law of the Swiss Federal Supreme Court In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0005.

82  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES As we will see, citations of the CJEU in Swiss case law appear to be both more frequent and more cogent than in other third states covered by the present book. This does not appear to be due to the education and background of the judges, or to their professional contacts with the CJEU. Admittedly, some of these factors may play a role in the decision to refer—​or not to refer—​to CJEU precedents in particular cases. However, it is argued that in a state where the influence of EU law is so deep and pervasive, this is by far the main driver. It is not, therefore, a matter of ‘influence of the CJEU’ per se. Far more than inter-​judicial dialogue, it is Swiss judges’ everyday office of applying the law that leads them to consider CJEU precedent.

B.  Background Information: Switzerland, Its Legal System, Its Judges 1.  The Swiss Confederation and its Constitution Switzerland is a wealthy country of about 8  million inhabitants.2 It is located in Central Europe between Italy, France, Germany, Austria, and Liechtenstein. Despite its official name (the Swiss Confederation), since 1848 it has been a fully fledged federal state consisting of twenty-​six cantons and a federal government seated in Bern. Swiss federalism is particularly strong in international comparison:  the cantons retain a large share of the aggregate state budget as well as wide-​ranging competences, for example in matters of taxation, public order, education, and public health. Such strong federal traditions mirror a history of bottom-​up state construction, as well as the enduring multicultural character of Swiss society. Indeed, on the one hand, cantonal identities, traditions, and citizenship(s) still play a very important role in the everyday lives of the Swiss. On the other hand, Switzerland is a multinational state partaking in three different European cultures. Its three full official languages are German, French, and Italian. The majority of the inhabitants, living in northern and eastern Switzerland, speak German, or cantonal varieties thereof. The second-​largest linguistic community is that of the French speakers in the western Cantons. Italian is spoken in the southern Canton Ticino and is a minority language in south-​eastern Kanton Graubünden. In this same canton, Romansh dialects are also spoken, and a standardized form of Romansh is recognized as the fourth national language at federal level (though not as a full official language).3

2 For a more detailed presentation of Switzerland and of its legal system, see Marc Thommen (ed), Introduction to Swiss Law (University of Zurich 2018). 3 See Federal Constitution of Switzerland, adopted 18 April 1999 (last modified 1 January 2020), RS no 101, Art 70 (Federal Constitution).

CJEU CITATIONS IN SWISS CASE LAW  83 Absent a Swiss ‘nation’ in an ethnic sense, Swiss-​ness relates more to a (partly) shared way of life and political-​institutional culture centred on federalism, direct democracy, and neutrality.4 As noted, each canton has its own constitution, legal system, institutions, tax revenues, and budget. The supreme law of the land is, however, the Federal Constitution, which was entirely recast in 1999 and has since undergone further changes. The Constitution lays down the key principles of the federal legal system, including the principle of supremacy of federal law; it enumerates federal competences, as well as the basic guidelines for the policies to be founded thereon; and it establishes the three branches of federal government:  the bicameral Federal Assembly (legislative), the Federal Council (executive), and the judiciary, namely the Federal Supreme Court (FSC) seconded by three federal first-​ instance courts:  the Federal Administrative Court, the Federal Criminal Court, and the more recent Federal Patent Court. Swiss federalism is of the ‘cooperative’ (or ‘executive’) kind. Areas where the design, financing, and execution of public policies and programmes fall exclusively under federal or cantonal competences are rather the exception. In most policy areas, competences are variously shared. Furthermore, federal laws and policies are as a rule executed by the cantons under the supervision of the federal administration. In addition to federalism, the defining trait of Swiss political and constitutional culture is, as observed, (semi-​)direct democracy. It is worth noting that decision making at all levels (communal, cantonal, federal) ordinarily happens through mechanisms of representative democracy. The electoral body is, however, entrusted with the final say on many important decisions. Rules vary according to the level of government. At federal level, voters must approve every amendment to the Constitution (‘mandatory referendum’, with a double majority of people and cantons). A group of voters may also propose to the electoral body any such amendments by ‘popular initiative’, with the sole substantive limitation that the proposed bill must respect peremptory norms of international law (as opposed to ‘ordinary’ treaty law). Upon the request of a given number of voters, parliamentary laws also undergo a referendum before they can enter into force (‘optional referendum’). Important treaties are also subject to ‘mandatory’ or ‘optional’ referenda, as the case may be. For instance, a hypothetical Treaty of Accession to the European Union (EU) would have to be approved in a mandatory referendum, whereas any treaty requiring modification of parliamentary legislation is subject to optional referendum.



4

On Switzerland as ‘Willennation’, see Andreas Thier, ‘Legal History’ in Thommen (n 2) 41ff, 43.

84  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The identity of the Swiss state is also defined by its foreign policy doctrines. The most well known is neutrality. This should not be confused with isolationism. As a relatively small state depending on international cooperation in a wide number of areas, Switzerland has a very active foreign policy, and is naturally engaged in favour of an international order based on the rule of law (as opposed to power politics). This is all the truer in the economic sphere: the Swiss economy is strongly dependent on foreign trade, investment, and workforce. A founding member of the World Trade Organization (WTO), Switzerland actively pursues the development of a network of treaties furthering economic integration. In this context, close relations with the European Union (EU)—​which is both an indispensable partner in a wide range of policy areas, as well as by far the main economic partner of Switzerland—​has central importance. This long-​standing policy of openness and international engagement, which dates back to the nineteenth century, has been challenged by the ascent of sovereigntist political tendencies since the early 1990s. In 1993, the Swiss electorate narrowly rejected entry into the European Economic Area (EEA). Since then, a few popular initiatives have been approved that changed the Constitution in a sense contrary to important treaties in force such as the European Convention on Human Rights (ECHR), as well as key treaties concluded with the EU.5 The trend is far from univocal, however. On other occasions, the electorate has clearly rejected sovereigntist initiatives in the name of preserving the country’s international relations.6 Furthermore, even when the Constitution has been revised in a sense opposing existing treaties, this has not modified the general course of Swiss foreign policy, nor has it significantly affected implementation of the treaties concerned in the domestic legal order (see section B.2 below).

2.  The Swiss legal system Swiss law is written law in the civil law tradition. Custom has a negligible role, and judge-​made law in the proper sense is only accepted as a means to fill in legislative lacunae as foreseen in Article 1 of the Swiss Civil Code. Judicial decisions are binding on the parties and on lower courts in case they have been rendered on appeal, but they do not set binding precedent for future cases.

5 See eg Federal Constitution, Art 121, paras 3–​6, introduced by popular vote of 28 November 2010 following the initiative ‘For the Expulsion of Criminal Foreigners’ (2009) Federal Gazette (FF), 4571; Federal Constitution, Art 121a, as modified by popular vote of 9 November 2014 following the initiative ‘Against Mass Immigration’ (2013) FF, 279. 6 See eg the initiative ‘International Agreements:  Let the People Decide!’ (2012) rejected on 17 June. See also the so-​called ‘Self-​Determination Initiative’ (2018) rejected on 25 November 2020. All the results of past referenda may be consulted at accessed 25 May 2020.

CJEU CITATIONS IN SWISS CASE LAW  85 This is, of course, a rather formalistic description of the system. In actual practice, decisions of the FSC do set precedents on interpretation of the law, and there are indeed a number of formal or informal rules surrounding the management of case precedents. In particular, a distinction exists between ‘published’ and ‘unpublished’ judgments of the federal courts. The former are published in the official reports and are selected by the courts themselves on the basis that they are leading cases,7 whereas ‘unpublished’ judgments are only made available through the general websites of the courts, and they carry less weight. Lower courts may deviate from FSC precedent, but at the risk of seeing their own judgments annulled. Furthermore, the FSC only sets aside its own precedents when there are ‘important reasons’ for doing so.8 The hierarchy of domestic law follows a rather ordinary pattern (see Figure 5.1). Still, Swiss federal law is characterized by a peculiar principle enshrined in Article 190 of the Constitution, whereby ‘The Federal Supreme Court and the other judicial authorities apply the federal statutes and international law.’ On its face, this provision states a truism, but its implication is the so-​called ‘immunity of federal statutes’:  while federal statutes must in principle respect the Federal Constitution, the FSC has no power to strike them down, or to refuse to apply them on grounds that they are unconstitutional. In the terms of Article 190: Swiss courts must ‘apply’ federal statutes even if they declare them unconstitutional. This is not an exception to the hierarchy of norms. Rather, it has to do with the Swiss conception of the separation of powers: it is not up to the judge—​or to any other body or official—​to make their views about the constitutionality of a rule prevail over those of the legislator. De facto, however, the result is that in case of conflict, statutes take

Federal law Constitution Federal statutes Orders and decrees Agreements among cantons

Cantonal law Fig 5.1  Switzerland: Hierarchy of domestic law Source: Prepared by the author.

7 See Rules of the FSC, Classified Compilation of Federal law (Recueil systématique) 173.110.131 (RS), Art 58. Marc Thommen speaks of ‘de facto precedents’: Marc Thommen, ‘Swiss Legal System’ in Thommen (n 2) 1ff, 33. 8 This is a well-​established principle: see eg BGE 141 II 297, 5.5.1. When a Division of the FSC intends to change the case law established by another Division, special procedural requirements apply: see the Statute on the Federal Supreme Court, RS 173.110, Art 23.

86  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES precedence over the Constitution. This is an important, albeit unstated part of the Swiss system of checks and balances. The electorate may well change the Constitution, and at times they do so in unforeseen or radical ways. Nevertheless, full implementation of the amendments thus adopted requires the cooperation of the Swiss parliament, which has so far acted as a moderating force in the most extreme cases.9 Coming to international law, it is worth pointing out that Switzerland is a monist system, and that Swiss judges recognize fairly broadly the direct effect of international provisions. Under Article 190 of the Constitution, international law benefits from ‘immunity’ vis-​à-​vis the Constitution, just like federal statutes. In case of conflict with federal statutes, the Supreme Court has ruled that international law also takes precedence.10 There are exceptions and nuances, as well as growing contestation of the principle.11 Still, according to the prevailing opinion in FSC case law, international law ultimately takes precedence over all domestic legislation.12 This privileged status has so far shielded agreements concluded by Switzerland with the EU from the effects of recent popular votes to a very large extent, and has ensured their continuing implementation.

3.  The Swiss judicial system There are twenty-​six cantonal judiciaries in Switzerland (each topped by a cantonal supreme court), plus a federal judiciary. In matters of cantonal law, cantonal supreme courts have the final say.13 In matters of federal law (including international law), cantonal courts are, as a rule, the lower-​instance courts. This is so because federal law is usually implemented by way of cantonal administrative decisions to be challenged before cantonal courts, or is directly adjudicated by cantonal courts themselves (eg the Federal Civil Code). However, a final appeal is possible before the FSC. Furthermore, in some cases (‘federal’ crimes, intellectual property, appeals against decisions of the federal administration), the court of first instance is federal instead of cantonal (Figure 5.2).

9 That has been the case, for instance, of the implementation of the Federal Constitution, Art 121a (n 5): Véronique Boillet and Francesco Maiani, ‘La “preference indigene light” et sa compatibilité avec l’Accord sur la libre circulation des personnes’ [2016/​17] 37(4) Annuaire du droit de la migration 61–​78. 10 BGE 125 II 417. 11 For a good summary, see Federal Council, Suisse–​Union européenne, ‘Report of the Federal Council’ (2010) FF, 2067 and Federal Council, Suisse–​Union européenne, ‘Report of the Federal Council’ (2011) FF, 3401. The ‘Self-​Determination Initiative’, which sought to call into question the supremacy of international law, was, as noted, rejected in the polls in November 2018 (n 6). 12 BGE 139 I 16, 5.2, 5.3. 13 Of course, in cases where the plaintiff alleges that the application of cantonal law entails violation of the rights enshrined in federal law (including the Federal Constitution), then the matter becomes one of federal law.

CJEU CITATIONS IN SWISS CASE LAW  87 Tribunal fédéral

Tribunal fédéral de première instance (Tribunal administratif fédéral par exemple)

Tribunal cantonal supérieur

Tribunal cantonal de première instance (Tribunal de district, d’arrondissement, . . .)

Fig 5.2  Switzerland: Judicial architecture Source: Prepared by the author from Alain Wurzburger, Le Tribunal fédéral (Schulthess Verlag 2011).

4.  The Federal Supreme Court in more detail As the rest of the chapter focuses on the case law of the FSC, it is useful to provide more details about it—​particularly on its personnel and on its contacts with EU law and the CJEU. The top judicature in the country, the FSC, currently comprises thirty-​eight judges. Over the past ten years, it has resolved between 7,242 and 7,811 cases yearly, ie on average 200 per judge annually.14 The FSC is organized in specialized Divisions—​two Public Law Divisions, two Civil Law Divisions, one Criminal Law Division, and two Social Law Divisions. Its judges are elected by the parliament. Legal education is not, formally speaking, a requirement, but in practice is a sine qua non. Indeed, most FSC judges are former judges of inferior courts or—​occasionally—​former lawyers or university professors. In addition to professional qualifications, election takes into account criteria of linguistic and regional balance. There are currently twenty-​three German-​ speaking, twelve French-​speaking and three Italian-​speaking judges—​all of whom are supposed to be at least active users of a second national language, and passive users of the third, and most of whom also speak English. One last important consideration is that elections occur according to an informal ‘quota system’ between political parties. The political profile of individual judges is therefore much more pronounced and explicit than in the Supreme Courts of other European states.15 The clerks assisting the FSC judges are, subject to exceptions, Swiss citizens having a Swiss legal education. A few of them may have studied abroad or spent a 14 These figures are drawn from the Annual Reports of the FSC, available on the webpage accessed 30 April 2020. 15 See accessed 30 April 2020.

88  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES period as interns at the European Court of Human Rights (ECtHR) or at the CJEU, but the vast majority have received their legal training in Switzerland. Given that EU law is taught in most Swiss law faculties as a mandatory subject, one can assume that at least the younger members of the FSC staff have received university-​level education on the topic. On the other hand, it would seem that no specialized courses or seminars are organized by the FSC, or have been since a cycle of seminars that I myself had the honour of presenting together with Professor Roland Bieber in 2002‒03. The FSC does not have regular bilateral contacts with the CJEU. There is only a trace of an official visit dating back to 2007.16 This does not rule out informal visits and contacts between judges. Furthermore, the FSC is a member of several associations of judicial bodies, such as the Association des Cours Constitutionnelles ayant en Partage l’Usage du Français (ACCPUF), and has ‘guest’ status in Association of the Councils of State and Supreme Administrative Jurisdictions of the EU, an association composed of the CJEU itself and of the Councils of State or the supreme administrative jurisdictions of the Member States. One may therefore assume that the FSC has regular opportunities to exchange views with its homologues and with the CJEU itself on CJEU case law, for example.

5.  The publication strategy of the FSC Judgments of the FSC are rendered in the language of the case (German, French, or Italian, as the case may be) and are not officially translated. The cases published in the official reports are numbered according to a specific format composed of an abbreviation and three numbers, for example BGE 136 II 5. The key is the following: • BGE stands for Bundesgerichtsentscheide (in French: ATF; Italian: DTF). • The first number is the volume number, indirectly indicating the year (vol 1 = 1875; vol 143 = 2017). • The roman number roughly indicates the area of law (I = constitutional law; II = administrative law and public international law; III = civil law; IV = criminal law; V = social law). • The last number is the page number. The structure of the judiciary—​and the fact that in Switzerland decisions are published in three languages and not officially translated—​has important implications for the implementation of the research design devised by Arie Reich and Hans Micklitz, spelt out below (see section E.1).



16

See CJEU Press Release no 24/​07 of 15 March 2007.

CJEU CITATIONS IN SWISS CASE LAW  89

6.  Interpretive approaches of the FSC, including to foreign legal materials In interpreting domestic law, Swiss judges will apply the usual hermeneutical approaches of literal, systematic, teleological, and historical interpretation. According to what the FSC calls its ‘pragmatic methodological pluralism’, none of these methods of interpretation takes precedence over the others, and the task of the judge is to combine them in such a way as to best illuminate the meaning of the law in each case.17 As a consequence, while the letter of the law constitutes the starting point of interpretation, deviations from it are not excluded when supported by, for example, teleological or systematic elements. In terms of international law, of course, the reference is Article 31 of the Vienna Convention on the Law of Treaties, as well as any special hermeneutical rule that may be stipulated by the international agreement involved.18 Use of foreign legal materials is not exceptional. Indeed, Swiss judges have a long-​standing tradition of referring to foreign legal materials in their decisions. Such references have always been considered to be the expression of a free, ‘comparative’ exercise undertaken by the judge to nourish their reflection on the problem at hand, no more and no less.19 The fact that foreign law exerted influence on a certain piece of legislation—​mostly German or French law in previous eras, rather more EU or US law nowadays—​would make such references more natural and frequent.20 When dealing with international law, Swiss judges may also refer to the practice of the other parties. As a general rule, however, consideration of foreign legal materials is not regarded as mandatory. The exceptions are linked, precisely, to what is called ‘euro-​ compatible’ interpretation (see section D). The judgments of the FSC are not accompanied by separate opinions. The style of reasoning seems to occupy a happy medium between the lengthy and at times extremely doctrinal judgments of the German Bundesverfassungsgericht and the lapidary style of French judges. FSC judgments are often discursive and the relevant legal literature is routinely quoted and discussed. This includes foreign literature, in turn including literature on EU law. This may constitute an indirect vehicle for the ‘import’ of ideas and conceptions from other legal systems.

17 See eg BGE 131 III 623. 18 See eg BGE 130 II 113, 6.1. 19 On the traditional use of foreign legal materials by Swiss judges, see Alexandra Gerber, ‘Der Einfluss des ausländischen Rechts in der Rechtsprehung des Bundesgerichts’ (1992) 20 Perméabilité des orders juridiques (Publications de l’ISDC)141–​63; see also Alexandra Gerber, ‘WERRO La jurisprudence et le droit comparé’ (1992) 20 Perméabilité des orders juridiques (Publications de l’ISDC)165–​72. 20 Thier (n 4) 59.

90  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

C.  Relations between Switzerland and the EU and the Approximation of Swiss Law to EU Law 1. General aspects Since its rejection of the EEA Agreement, Switzerland has been something of a ‘special case’ (Sonderfall) in the Western European context.21 On the one hand, it is the non-​EU state that is most closely integrated with (and dependent on) the EU economy, ecology, and demography. For instance, it is the Union’s third trading partner worldwide, behind the United States and China but far beyond Norway, Russia, or Turkey. On the other hand, it is the only sizeable Western European state that is neither a member of the EU nor a member of the European Economic Area (EEA). Internal political constraints—​with approximation to the EU being a particularly contentious and polarizing issue in the domestic arena—​have made accession to either the EU or the EEA impossible in the past and for the foreseeable future. In order to achieve integration and cooperation, Switzerland has therefore relied on sector-​specific agreements and on the unilateral approximation of its laws and policies.22 This model of integration—​the Swiss ‘bilateral way’—​is today at a crossroads. Since 2008, the EU has suspended the conclusion of any new agreements expanding Switzerland’s participation in the internal market until a global institutional settlement is found.23 Negotiations have been ongoing since 2014 and a late-​2018 Draft Framework Agreement has been disseminated for internal consultations by the Swiss Government.24 However, the prospects that Switzerland will actually sign and ratify the Agreement are uncertain, while the EU has made clear that a rejection might have consequences for the ‘sustainability and further development’ of Swiss–​EU relations.25 That said, current turbulences are not our concern. For our purposes, what has been achieved in terms of Europeanization until now matters far more. From the 1960s, and into the late 1980s, a few agreements were concluded, including the all-​important (albeit rudimentary) 1972 Free Trade Agreement (FTA).

21 Dieter Freiburghaus, Königsweg oder Sackgasse? Schweizerische Europapolitik von 1945 bis heute (2nd edn, Nzz Libro 2015); Clive H Church (ed), Switzerland and the European Union (Routledge 2007). 22 Matthias Oesch, Switzerland and the European Union (Dike Verlag AG 2008) 13ff. 23 For an analysis of the ‘institutional questions’ raised by the EU in a context broader than Swiss-​EU relations, see Christa Tobler, ‘One of Many Challenges after Brexit’ (2016) 23(4) MJECL 575‒94. 24 See accessed 30 April 2020. For analysis, see Astrid Epiney, ‘Der Entworf des Institutionellen Abkommens Schweiz—​EU’ (2018) Jusletter, 17 December. 25 See Council conclusions on EU relations with the Swiss Confederation of 19 February 2019, para 9  accessed 30 April  2020.

CJEU CITATIONS IN SWISS CASE LAW  91 Under such ‘first-​generation’ agreements, the approximation of Swiss Law to EEC Law was very limited. This changed with the popular rejection of the EEA Agreement on 6 December 1992. The government, stuck between the integration needs of the economy and popular hostility against visible limitations to sovereignty, relaunched the two traditional elements of the Swiss European policy and decided to take them to a completely different level: on the one hand, Switzerland would try to conclude sector-​specific agreements with the EU in a wide range of sectors; on the other hand, a systematic effort would be undertaken to align domestic legislation with the EU acquis.26

2.  The expanding network of agreements between Switzerland and the EU Starting in 1993, the EU and Switzerland have been involved in a continuous cycle of exploratory talks, (difficult) negotiations, and ratification of the results thereof.27 The first round of negotiations started at the initiative of the Swiss Government, which was anxious to offset the negative consequences of the country’s self-​exclusion from the ‘enlarged internal market’ of the EEA. Its themes were therefore essentially, though not exclusively, economic.28 The second round of negotiations was opened instead at the request of the EU, which was eager to see its own Directive on the taxation of savings income applied by selected third states, including Switzerland. Switzerland accepted, but requested parallel negotiations on some ‘left-​overs’ from the first round, as well as on association with implementation of the Schengen and Dublin acquis—​a step that, it may be noted in passing, marked an expansion of Swiss–​EU relationships from the essentially economic to the broadly political. In both rounds, negotiations were characterized by issue linkages and multilevel games. One of the main threads of this complex texture, and the one that interests us here, was the confrontation between the competing values of ‘uniformity’ and ‘autonomy’. The EU maintained from the outset that advanced cooperation and integration would only be on offer if based on application of the acquis. As the Commission pointed out in 1993:29 Any agreement would need to deal satisfactorily with the implementation of the Community acquis and the need for Switzerland to accept the discipline involved.

26 See Communication of the Federal Council on the Plan following the Rejection of the EEA, FF 1993 I 757. 27 For an overview see Oesch (n 22) 19ff. 28 The negotiations also covered ‘non-​market’ items, such as the free movement of persons not pursuing an economic activity, as well as scientific and technological cooperation. 29 European Commission, Communication on Future Relations with Switzerland, COM (93) 486, para 13.

92  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES This requirement responded to different rationales. In part, requiring Switzerland to implement the acquis was linked to the object and goals of each prospective agreement. In some matters, regulatory convergence was the goal of the negotiation for the EU.30 In others, the EU saw it as a necessary precondition for the form of cooperation that was envisaged.31 At the same time, the Union’s insistence on acceptance of the acquis also had much to do with broader political concerns, and more precisely with the question of fitting the ‘Swiss piece’ into the wider jigsaw of the Union’s external relations.32 The Swiss government, for its part, was not fundamentally opposed to cooperating on the basis of the acquis. Anticipating strong domestic resistance, however, it objected to the application of some aspects of the acquis, such as the free movement of persons. Moreover, and again in view of domestic hostility to losses of sovereignty, it strove to negotiate less-​than-​full obligations to transpose the acquis. In this regard, the ‘static’ character of the prospective agreements was a non-​ negotiable red line: any obligation to apply the acquis would only refer to the ‘pre-​ signature’ acquis, while Switzerland would retain control of acceptance or refusal of the ‘post-​signature’ acquis. The negotiations eventually produced sixteen ‘sectoral’ agreements. The first package of seven, including the all-​important Agreement on the Free Movement of Persons and the two agreements on transport services, was signed in 1999 and entered into force in 2002.33 A second package of nine was signed in 2004 and entered into force gradually in the following years.34 Further important agreements have been concluded since, including the revised Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, but as stated in section C.1, further progress in market integration is for the moment suspended until the entry into force of a new institutional settlement. Taken together, the agreements reflect the parties’ competing agendas on the issue of regulatory convergence. Where the EU sought approximation based on the acquis, namely in the sectors of free movement of persons, air and land transport, 30 For instance, regarding taxation of savings income, as already noted. 31 For instance, as a way to ensure a level playing field, while including some Swiss industries in the internal market, or as a way to ensure homogeneous controls at the external borders before admitting Switzerland to the Schengen ‘club’. 32 In particular, the EU was conscious that granting Switzerland full access to the internal market or EC programmes à la carte, or without requiring full implementation of the acquis, might undermine EEA solidarity (European Commission, (n 29) para 10). Likewise, in areas where parallel bilateral negotiations were ongoing or had been concluded with other third countries (eg on taxation of savings or Schengen/​Dublin), the EU was reluctant to grant privileged treatment to Switzerland. 33 Agreements on the Free Movement of Persons, Air Transport, Land Transport, Trade in Agricultural Products, Mutual Recognition in Relation to Conformity Assessment, Government Procurement, and Scientific and Technological Cooperation OJ 2002 L114. For analysis, see Daniel Felder and Christine Kaddous (eds), Accords bilatéraux Suisse—​UE (Schulthess Verlag 1999). 34 On the ‘Bilateral II Agreements’ see Christine Kaddous and Jametti Greiner (eds), Accords bilatéraux II Suisse–​UE et autres accords récents (Helbing and Lichtenhahn 2005).

CJEU CITATIONS IN SWISS CASE LAW  93 taxation, security (Schengen), asylum (Dublin), and judicial cooperation (Lugano), it succeeded. Nonetheless, Swiss negotiators managed to obtain some carve-​outs,35 as well as softer versions of the obligation to apply the relevant acquis. They also managed to lock in the ‘static’ character of the agreements. As noted, this means that ‘updating’ the agreements to the current state of EU law requires Switzerland’s assent, which Switzerland is free to withhold—​with the partial exception of the Schengen/​Dublin Agreements and of the so-​called ‘24 hours Agreement’.36 Beyond that, each agreement defines in its own terms the exact manner and form of acquis implementation, as shown by the following examples. The Agreement on Air Transport (AAT) is in a way the most linear instrument of legal Europeanization. Its ‘General provisions’ reproduce word for word the provisions of the EC Treaty relating to non-​discrimination, freedom of establishment, and competition. Its annex enumerates all the regulations and directives that Switzerland is required to implement—​basically, the whole air transport acquis. This operation of incorporation (textual and by reference) is perfected through Article 1(2), which reads: Insofar as they are identical in substance to corresponding rules of the EC Treaty and to acts adopted in application of that Treaty, those provisions shall, in their implementation and application, be interpreted in conformity with the relevant rulings and decisions of the Court of Justice and the Commission of the European Communities given prior to the date of signature of this Agreement [ . . . ].

The Agreement on the Free Movement of Persons (AFMP) replicates the same scheme of textual incorporation of, and references to, EU secondary legislation. However, the parties are not required to literally apply the EU legislation referred to, but rather to ensure the application of ‘equivalent rights and obligations’ (AFMP, Art 16(1)). Moreover, the pre-​signature case law of the Court of Justice must be ‘taken into account’ (AFMP, Art 16(2)), rather than conformed to. Somewhat confusingly, a joint declaration enjoins the parties to ‘apply the acquis communautaire [ . . . ] in accordance with the Agreement’. Further down the line of Europeanization, we find the Land Transport Agreement (LTA), which again contains references to EU legislation, with an obligation to apply them by equivalence (Art 52(6)), as well as provisions replicating EU law ‘originals’. However, no reference is made to the case law of the CJEU. The revised Lugano Convention follows a different model still. The Lugano Convention is a multilateral treaty aiming to extend to the four European Free Trade Association (EFTA) states the intra-​EU system of recognition and 35 See René Schwok, ‘Un rapprochement . . . qui éloigne la Suisse d’une adhesion’ [2004] RMCUE 645–​50. 36 According to these Agreements, Switzerland is at liberty to accept or to refuse the post-​signature acquis. However, failure to accept the new acquis entails in principle the suspension or termination of the Agreements.

94  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES enforcement of judicial decisions in civil and commercial matters. Protocol no 2 to the Convention requires that: [A]‌ny court applying and interpreting the Convention [ . . . ] pay due account to the principles laid down by any relevant decision concerning the provision(s) concerned or any similar provision(s) of the 1988 Lugano Convention and the [EU Law] instruments referred to in Article 64(1) of the Convention rendered by the courts of the States bound by the Convention and by the Court of Justice of the European Communities.

The Agreements associating Switzerland to the implementation of Schengen and Dublin (respectively, AAS and AAD), my last example, are constructed differently. Both Agreements stipulate clearly that Switzerland is required to ‘accept and apply’ the relevant EC and EU acquis, and that interpretation of the acquis should be ‘as homogeneous as possible’. They do not lay down an explicit obligation for the Swiss authorities to take into account the case law of the Court. Nonetheless, they institute exchange of information and reporting, and provide for termination in case of ‘substantial divergences’ in the application of the acquis, unless the parties can find a political solution.

3.  The unilateral alignment of Swiss law with EU law: ‘autonomous implementation’ and ‘inspiration’ In 1988, the Federal Council announced that it would pursue regulatory alignment with EU standards in fields where divergences of legislation might have cross-​ border repercussions (eg in the area of technical standards). This ‘autonomous adaptation’ of Swiss law to EU law (autonomer Nachvollzug) remained a relatively rare occurrence until 1992.37 Starting from 1993, by contrast, ‘euro-​compatibility’ was seen as a general guideline for socio-​economic legislation, and the guideline has been consistently implemented in later years. The process of systematic alignment started with the Swisslex programme of legislative reform—​a suitably renamed and reformatted version of the legislative package prepared in view of EEA accession (Eurolex). Thereafter, it continued with such vigour that in 1999 the Federal Council observed:38 In practice, Parliament and the Federal Council only exceptionally adopt legal acts that are not [euro-​]compatible. 37 See Carl Baudenbacher, ‘Zum Nachvollzug Europäischen Rechts in der Schweiz’ (1992) 27(3) Europarecht 309–​20. 38 Federal Council, Suisse–​Union européenne, ‘Rapport sur l’intégration’ (3 February 1999) FF, 3600, 3634: ‘Dans la pratique, le Parlement et le Conseil fédéral n’adoptent qu’exceptionnellement des actes juridiques qui ne sont pas [euro-​]compatibles.’

CJEU CITATIONS IN SWISS CASE LAW  95 This was not merely a quantitative change. The rationales behind the quest for ‘euro-​compatibility’ had also expanded and diversified. In the 1988 philosophy, the goals of autonomous adaptation were essentially: (i) to minimize obstacles to trade; and (ii) to facilitate future negotiations with the EU. These rationales were maintained, strengthened, and expanded. Henceforth, autonomer Nachvollzug would also serve the purpose of reducing distortions of competition, including when such distortions would have actually played to the advantage of Swiss industry.39 This accounts for the marked expansion of Europeanization observed in the 1990s—​ from technical legislation to economic law at large.40 Unilateral Europeanization, moreover, could no longer be identified with autonomous adaptation in the strict sense—​that is, a legislative policy aiming specifically at euro-​compatibility. EU law also became a major source of inspiration in the logic of lesson drawing. Conceptually, of course, this was nothing new.41 However, the influence of EU law became particularly strong during the 1990s. For example, in 1996 the Swiss Parliament adopted the Federal Statute on the Swiss Internal Market.42 This law explicitly ‘transposed’ the Cassis de Dijon principle into Swiss law with the aim of reducing fragmentation of the Swiss market along cantonal lines: a classic EU solution for a purely Swiss problem. Another important piece of market regulation, deeply influenced by EU competition law and straddling the divide between autonomer Nachvollzug proper and inspiration, was the Federal Statute on Cartels of 1995.43 Europeanization of the legislative process must also be mentioned here. What had started as a voluntary practice for selected areas—​the practice of including in legislative proposals an analysis of their ‘euro-​compatibility’—​has become a general obligation by virtue of Article 141 of the Law on the Federal Parliament.44 Before proposing and passing new legislation, the Federal Government and the Federal Parliament are now required to assess its ‘euro-​compatibility’ on a routine basis, even in non-​economic areas such as immigration law.45 *** 39 See Federal Council, Suisse–​Union européenne, ‘Message sur le programme consécutif au rejet de l’Accord EEE’ (1993) FF I, 757, 762. 40 See Roger Mallepell, ‘Der Einfluss des Gemeinschaftsrechts auf die schweizerische Gesetzgebung 1993–​1995’ (1999) Swiss Papers on European Integration, paper no 21. For an overview of more recent practice, see Christian Kohler, ‘Influences du droit européen sur la legislation Suisse: analyse des années 2004 à 2007’ (2009) Jusletter, 31 August. 41 As noted in section B.6 above, German law was a major source of inspiration for the drafters of the Swiss civil code. 42 Classified Compilation of Federal Law, 943.02. 43 ibid 251. See also the Federal Council, Suisse–​Union européenne, ‘Federal Council Message’ (1994) FF, 472. 44 Classified Compilation of Federal Law, 171.10. 45 See eg Federal Council, Suisse–​Union européenne, ‘Message concernant la loi sur les étrangers’ (2002) FF, 3469, para 5.

96  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Be it out of international obligation, or because of legislative policy, Swiss law is nowadays intensely ‘Europeanized’ in a large number of sectors. Granted, many areas of law fall outside the sphere of EU competence and influence, even in the Member States, and the same is a fortiori true of Switzerland. Public education, large parts of civil and criminal law, land planning, and others are only tangentially affected by EU law. The list of Europeanized sectors is, however, impressive. It encompasses first and foremost ‘economic’ law at large: technical legislation, trade rules, consumer protection, aspects of labour and social law, indirect taxation, transport and public utilities, intellectual property, media law, professional regulations, and the like. Private international law and migration law in all its aspects are also deeply Europeanized. The same goes for data protection law. Indeed, in part because of contractual obligations flowing from the Schengen association, and in part to facilitate the free movement of personal data between Switzerland and the EU, Swiss legislation is undergoing a thorough reform that aims inter alia to further approximate it to relevant EU legislation and jurisprudence.46 Newer areas are also coming under EU law influence (eg some aspects of criminal law). The legislative policies of euro-​compatibility are often reflected in the activities of independent regulators and authorities. For instance, it is not unusual for the Swiss Competition Commission (COMCO) to rely on European Commission communications in its own documents implementing the Federal Statute on Cartels.47 Indeed, a pendant of large-​scale regulatory adaptation is the multifaceted practice of ‘euro-​compatible’ interpretation; that is, interpretation of ‘Europeanized’ provisions in the light of relevant CJEU precedent. This will now be examined through the prism of FSC case law.

D.  The Evolving Doctrines of ‘Euro-​Compatible’ Interpretation through the Case Law of the FSC 1.  Introduction: an unfolding history The late Olivier Jacot-​Guillarmod, at the time a judge at the FSC, wrote in 1999 about the ‘traces’ of EC law in the case law of the Supreme Court.48 Indeed, up 46 See Astrid Epiney and Daniela Nüesch (eds), Die Revision des Datenschutzes in Europa und die Schweiz (Schulthess Verlag 2016); FREI, ‘Die Revision des Datenschutzgesetzes aus europarechtlicher Sicht’ (2018) Jusletter, 17 September. 47 See eg Swiss Competition Commission, ‘Note explicative relative àla Communication concernant l’appréciation des accords verticaux’ (12 June 2017) para 2  accessed 30 April  2020. 48 Olivier Jacot-​Guillarmod, ‘Traces de droit communautaire dans la jurisprudence du Tribunal fédéral suisse’ in Rodriguez Iglesias, Romain Schintgen, and Charles Elsen (eds), Mélanges en hommage à Fernand Schockweiler (Nomos Verlagsgesellschaft 1999) 213‒32.

CJEU CITATIONS IN SWISS CASE LAW  97 until then FSC references to the CJEU were few and far between (for statistics, see section E below). And for the most part, they were merely comparative references. For instance, in adjudicating the right of non-​discrimination of confederates before the authorities of other cantons, the FSC drew in passing a parallel to EU internal market law.49 Similarly, in adjudicating the highly controversial issue of positive discrimination in favour of women, the FSC embarked on a comparative tour and, in this context, relied inter alia on the Kalanke judgment.50 Adjudicating cases under the FTA of 1972 (the only important agreement in force up until then), the FSC made a few references to the CJEU. Remarkably, the first such reference was made in order to deny that Swiss judges had any obligation to take into account CJEU precedent. In ‘OMO’,51 the claimant sought to overturn a first-​instance injunction based on national trademark law by invoking the FTA. It argued that such an injunction violated the prohibition of measures having equivalent effect to quantitative restrictions as interpreted in the case law of the CJEU on free movement of goods. The FSC underscored the systematic differences existing between the Rome Treaty and the FTA, denied that Swiss judges had to transpose CJEU case law on the provisions of the Rome Treaty to similarly worded FTA provisions, and rejected the claimant’s plea.52 In a later case on rules of origin, the FSC (marginally) softened its stance by showing that it would take into account—​ though not be bound by—​CJEU precedent on the FTA itself.53 The most committing of the early references were made in the context of the (1988) Lugano Convention, which included language similar to that of the current Convention quoted in section C.2 above. In a remarkable judgment, the FSC held itself duty-​bound to follow the interpretation given by the CJEU on parallel EU provisions, its reservations on said interpretation notwithstanding.54 Save for the last case mentioned, early references were not very sophisticated. The FSC seldom elaborated on the reasons leading it to consider CJEU precedent, or on the authority it attached thereto. When something was said to this effect, it was mostly non-​committal. It has taken a long time and much argumentative effort for doctrines of euro-​ compatibility to mature. This process has progressed in parallel with the growing influence of EU law on Swiss law. On the one hand, provisions requiring explicitly that CJEU precedent be taken into account have multiplied. On the other hand, the

49 BGE 122 I 109. 50 BGE 123 I 152; CJEU Case C-​450/​93 Kalanke [1995] (ECLI:EU:C:1995:322). 51 BGE 105 II 49. 52 ibid 3. For analysis, see Thomas Cottier and Nicolas Diebold, ‘Warenverkehr und Freizügigkeit in der Rechtsprechung des Bundesgerichts zu den Bilateralen Abkommen—​Zur Anwendung und Auslegung von nachvollzogenem Recht und Staatsverträgen unterschiedlicher Generationen’ (2009) Jusletter, 2 February. 53 BGE 114 IB 168. 54 BGE 124 III 188.

98  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES sheer mass of ‘Europeanized’ law has made the once-​attractive option of methodological vagueness less sustainable. It should be noted that the process is still in progress. FSC doctrines of euro-​ compatibility have so far tended to be agreement-​specific or statute-​specific, or at the very least specific to various fields of law. Overarching principles (or tendencies) are emerging, but there is still some room for differentiation and contestation, even within the same Division of the FSC. What follows is a brief account of the main doctrines that have emerged, both in the context of ‘bilaterales Recht’55 and in the context of unilateral approximation of Swiss law to EU law.

2.  Doctrines relating to sectoral agreements: the case of the AFMP The agreement that has given rise to the most litigation, to the most references to CJEU law, and to the most refined doctrines of euro-​compatible interpretation, is by far the AFMP. As noted above in section C.2, Article 16(2) AFMP makes it mandatory to ‘take into account’ the relevant case law of the CJEU rendered before signature of the agreement, whenever notions of EU law are used in the agreement. Post-​signature case law must be exchanged between the Parties so that the mixed committee may ‘determine [its] implications’—​which it has seldom, if ever, done. Early on, the FSC ruled that pre-​signature and relevant case law was essentially binding on the Swiss interpreter.56 This left two fairly complex points to be resolved: (i) when CJEU case law is ‘relevant’ for the purposes of Article 16 AFMP; (ii) what the domestic authorities are to make of ‘relevant’, post-​signature CJEU case law.57 As for the first question, clearly CJEU precedent will not enter into consideration unless it refers to EU provisions that are somehow incorporated in the agreement. Even in such cases, however, it may not be relevant. In this respect, the FSC applied a doctrine elaborated decades earlier by the CJEU itself on the interpretation of international agreements modelled on EU law (Polydor). According to the Polydor principle (itself a fairly straightforward application of Article 31 of the Vienna Convention, and a key tenet in the interpretation of ‘bilateral law’), the fact that an agreement concluded by the EU with a third state uses the same language as a parallel EU provision is not in itself a sufficient reason to interpret it in the 55 The expression is borrowed from Christa Tobler and Jacques Beglinger, Grundzüge des bilateralen (Wirtschafts) Rechts (Dike Verlag AG 2012). 56 See a contrario BGE 130 II 1, 3.5; see also BGE 136 II 5, 3.4. 57 For an early and illuminating discussion, see Astrid Epiney, ‘Zur Bedeutung der Rechtsprechung des EuGH für Anwendung und Auslegung des Personenfrei zügigkeitsabkommen’ [2005] ZBJV 1.

CJEU CITATIONS IN SWISS CASE LAW  99 same way as the EU provision.58 The decision on whether to ‘transpose’, say, CJEU internal market case law to parallel provisions in an FTA requires consideration of the FTA’s overall goals and systems, and of the extent to which they coincide with those of the Rome Treaty. Before Polydor was rendered, the FSC applied the same principle in OMO. And without actually quoting Polydor or OMO, it followed the same approach in the context of Article 16 AFMP. It ruled that CJEU precedent on EU provisions incorporated in the Agreement would not be considered ‘relevant’ whenever it relied on integration concepts going beyond the scope and objectives of the Agreement itself (such as strong interpretations of free movement law explicitly or implicitly premised on the concept of EU citizenship).59 As for the second question, the FSC was recurrently confronted with parties invoking ‘post-​signature’ CJEU judgments. The letter of Article 16(2) AFMP is fairly straightforward here: there is no obligation whatsoever to take such judgments into account. Still, this hard-​and-​fast distinction between ‘pre-​signature’ and ‘post-​signature’ case law has serious drawbacks. On the one hand, it is quite unnatural:  subsequent judgments may develop the findings of earlier ones, or bring important clarifications which may be useful to the Swiss judge. On the other hand, denying all relevance to ‘post’-​judgments makes it impossible, in the long haul, to realize free movement among the parties ‘on the basis of the rules applying in the European [Union]’ (AFMP preamble). Indeed, it would lead eventually to a situation where ‘Swiss–​EU free movement’ would bear little resemblance to ‘EU free movement’. The initial stance of the FSC was to sweep methodological questions conveniently under the rug of judicial discretion. It claimed for itself full discretion in taking ‘post-​signature’ judgments into account, hinted that it would do so, especially in cases where ‘post-​signature’ judgments built over ‘pre-​signature’ case law, but refrained from stating any rule in this regard.60 This had the advantage of flexibility, but created considerable legal uncertainty. Eventually, this position entangled the FSC in difficult case-​by-​case determinations and contradictions.61 In Basso,62 the FSC based itself on Akrich,63 a ‘post-​signature’ judgment departing strongly from ‘pre-​signature’ precedent, so as to be able to re-​ interpret in a much more restrictive sense the family reunification provisions of the AFMP. Almost immediately, the CJEU started distancing itself from Akrich.64 58 CJEU Case 270/​80 Polydor [1982] (ECLI:EU:C:1982:43). See also Christa Tobler, ‘Die EuGH-​ Entscheidung Grimme—​Die Wiederkehr von Polydor und die Grenze des bilateralen Rechts’ [2009/​10] Annuaire Suisse de droit européen 369–​84. 59 BGE 130 II 113, 6.2. 60 ibid 5.2. 61 For a fuller account of the story recounted here in brief, see Francesco Maiani, ‘La Saga Metock’ (2011) I Revue de droit Suisse 27–​53. 62 ibid. 63 CJEU Case C-​109/​01 Akrich [2003] (ECLI:EU:C:2003:491). 64 CJEU Case C-​1/​05 Jia [2007] (ECLI:EU:C:2007:1).

100  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES At this stage, exploiting the ambiguity of the CJEU’s own position, the FSC could still hold on to Akrich and Basso.65 When the CJEU fully overturned Akrich in Metock,66 however, this became impossible:  how could it be argued that Akrich should be taken on board to interpret the AFMP, but that Metock—​another ‘post-​ signature’ judgment intervening exactly on the same point of law, and marking a return to the ‘pre-​signature’ interpretation of EU Law—​should not? On this occasion, the FSC not only revised its position on family reunification, but also stated a more general principle:67 In order not to endanger the treaty objective of parallel legal rules, the Federal Supreme Court will take into account post-​signature case law appropriately. [ . . . ] Since it is not for the CJEU to decide on the interpretation of the Agreement for Switzerland, the Federal Supreme Court is not precluded from following a different interpretation of the Agreement when there are serious grounds for this. In light of the goal of legal parallelism pursued by the Agreement, the Supreme Court will not take this course lightly.

Thus, for the sake of parallelism (and of legal certainty) the Court eventually abandoned the practically unsustainable distinction between ‘pre-​signature’ and ‘post-​ signature’ case law and transformed a ‘static’ rule of conform interpretation into what is to all intents and purposes a ‘dynamic’ rule. Since then, the FSC has constantly followed this doctrine,68 and found ‘serious grounds’ for deviating from CJEU case law only in fairly specific circumstances. In particular, and quite understandably, the FSC refuses to follow the CJEU when doing so would mean disregarding derogations from the acquis that have been specifically agreed by the parties in the Agreements.69 While it has not formally transposed it to any other agreement, the FSC has widely used the doctrine just recalled as a general template. Indeed, it has applied similar ideas in the context of other agreements despite the fact that these lack explicit interpretive clauses or include vaguer provisions. The general concept that the FSC appears to follow is that of a (quasi-​)obligation to follow CJEU precedent, save where there are ‘serious grounds’ speaking against such a course.70 However, there are still areas where the FSC places more emphasis on its own interpretive autonomy. The case law concerning the 1972 FTA is a case in point. Even though it has been softened by subsequent case law to the effect that CJEU case law 65 BGE 134 II 10. 66 CJEU Case C-​127/​08 Metock [2008] (ECLI:EU:C:2008:449). 67 BGE 136 II 5, 3.4. 68 For a reaffirmation, see among others BGE 142 II 35, 3.1. 69 See eg BGE 142 V 2, 6. 70 See eg concerning the Schengen Association Agreement, the unpublished judgment of 24 January 2013, 6B_​196/​2012, indirectly recalled in BGE 143 IV 264, 2.1. See also, concerning the revised Lugano Convention, BGE 134 III 218, 3.3 and BGE 140 III 320, 6.1.

CJEU CITATIONS IN SWISS CASE LAW  101 relating to the internal market is not devoid of all relevance for the interpretation of the FTA (nicht unbeachtlich),71 the leading case in the area remains the OMO case examined in section D.1 above.

3.  Doctrines relating to unilaterally ‘adapted’ law: from Acquired Rights to Sat1 and beyond As with the interpretation of ‘bilateral treaties’, the rules on interpretation of Europeanized domestic law have progressively gained in sophistication over the years. The traditional approach to handling foreign legal materials for the interpretation of domestic law is, as we have seen, that of considering them in the context of a free comparative exercise (see section B.6 above). The FSC has kept it at that, even in cases where Swiss law is literally copied from EU law, when this is done in a purely comparative perspective (as opposed to a compatibility perspective). Thus, in interpreting the provisions of the Federal Statute on the Swiss Internal Market (section C.3 above), it ruled explicitly that perusing the case law of the CJEU ‘may be useful in a comparative perspective’.72 On the other hand, in the 2003 Acquired Rights judgment, the FSC held otherwise concerning so-​called ‘autonomously adapted’ Swiss legislation. The case hinged on the interpretation of Article 333 of the Code of Obligations (CO),73 reformed in 1994 in order to transpose the 1977 Employees’ Acquired Rights Directive into Swiss Law.74 Article 333 CO prescribes that whenever an undertaking is transferred, all employment contracts, as well as the rights and obligations flowing therefrom, are also automatically transferred to the buyer. The question submitted to the FSC was whether this rule—​or more precisely, the liability in solidum of the buyer for pre-​existing debts arising out of employment contracts—​ also applied when the transfer occurred in the context of bankruptcy proceedings. Note that while the Directive had been reformed in 1998 precisely to exclude such cases from its scope of application,75 Article 333 CO had not been ‘updated’ at the time of the judgment and did not address the issue explicitly.76 71 BGE 131 II 271, 10.3. 72 BGE 128 I 295, 4. 73 RS 220. 74 Council Directive 77/​187/​EEC of 14 February 1977 OJ 1977 L61/​26 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfer of undertakings, businesses or parts of businesses. 75 See Directive 98/​50/​EC of 29 June 1998 OJ 1998 L201/​88 amending Directive 77/​187/​EEC on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfer of undertakings, businesses or parts of businesses and Council Directive 2001/​23/​EC of 12 March 2001 OJ 2001 L82/​16 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfer of undertakings, businesses or parts of undertakings or businesses. 76 See now CO, Art 333b.

102  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The FSC ruled, on the basis of considerations of domestic law, that Article 333 CO did not apply in cases of insolvency.77 It then added obiter:78 Domestic law that has been autonomously adapted to EU law must, in doubt, be interpreted in a ‘euro-​compatible’ manner [ . . . ]. [W]‌hen the Swiss legal order is adapted to a foreign legal order—​here EU law—​harmonization must not be sought only in the formulation of the norm, but also in its interpretation and application, insofar as this is permitted by the methods of interpretation that must be observed under national law. [ . . . ] [T]he interpreter must [not only consider the legal situation known to the legislator, but] also keep an eye on the subsequent development of the law with which harmonization is sought.

The language of the Court is bold, inasmuch as it creates ex nihilo a duty of euro-​compatible interpretation, and espouses a dynamic conception of euro-​ compatibility—​a point that was, clearly, essential in this particular case. At the same time it is prudent language, inasmuch as it makes clear that euro-​compatible interpretation is a subsidiary means of interpretation that can be trumped by other considerations (such as text and context), and that there is no strict obligation to follow subsequent developments of EU law.79 In subsequent years, the FSC has further elaborated on this leading case. Its case law has not always been entirely consistent. In Métropole Television, it relied on subsequent EU legislation to solve a contentious issue of Swiss Copyright law, absent clear legislative intent to make Swiss law compatible with EU law.80 In Sat1, it emphasized an (arguably minor) divergence between the Swiss provisions on sponsoring and subsequent EU law, and maintained that the former could not be interpreted in conformity with the latter81—​even though the travaux préparatoires clearly hinted at euro-​compatibility as a means to avoid distortions of competition to the detriment of Swiss firms.82 The Court went on to note that: the corrections to the Swiss Broadcasting Act that might be needed [in order to avoid distortions of competition] cannot be brought by way of interpretation,

77 BGE 129 III 335, 5. 78 ibid 335, 6. 79 For very different readings by two of the authors of the judgment, writing extrajudicially, see Franz Nyffeler, ‘Die Anwendung autonomy nach vollzogener Normen des EU-​Rechts, in Festschrift 100 Jahre Aargauischer Anwaltsverband’ (Schulthess 2005) 35–​55; Hans Peter Walter, ‘Das rechtsvergleichende Element—​zur Auslegung vereinheitlichten, harmonisierten und rezipierten Rechts’ (2007) I Revue de droit Suisse 259–​77. 80 BGE 136 III 335. 81 BGE 134 II 223, 3.4.1. 82 Federal Council, Suisse–​Union européenne (2003) FF, 1428, 1444, 1449ff, 1465. In enumerating the aspects on which it proposed deviations from EU law, the government did not mention the provisions on sponsoring: see ibid, 1473 ff.

CJEU CITATIONS IN SWISS CASE LAW  103 since the legislature has very recently decided to maintain the pre-​existing Swiss provisions.83

This last point is of general importance. While it is now well established that euro-​ compatible interpretation of ‘autonomously adapted’ legislation is in principle dynamic, and may even lead to (or confirm) interpretations contra verba legis, the FSC refuses to push it to the point of amending legislative provisions, especially when the Swiss parliament has had the opportunity to perfect their alignment with EU law but has refrained from doing so.84 Admittedly, the line between ‘re-​ interpreting’ a text and amending it may be difficult to draw in some cases.

4.  Politics can matter (at times): Swisscom, Publigroupe, and the competition law roller coaster An area where evolution has been quite spectacular is competition law. Dealing with provisions of the Federal Statute on Cartels that were copied almost word for word from EU law (those prohibiting abuse of a dominant position), the FSC at first took the surprising position that they did not constitute ‘autonomous adaptation’ and thus required no ‘euro-​compatible’ interpretation.85 This high-​profile judgment seemed to call into question the consolidated practice followed by the Swiss COMCO of relying on EU-​inspired interpretations of competition law (see section C.3 above). One year after this Swisscom judgment, however, the very same Division of the FSC made a spectacular U-​turn in Publigroupe.86 In this case, the plaintiff argued that those very same provisions of the Federal Statute on Cartels—​those prohibiting abuse of a dominant position—​were too open-​ended and therefore contrary to the principle of legal certainty. Quite disconcertingly, given its prior decision in Swisscom, the FSC ruled: Since the Swiss Statute on Cartels is modelled after EU Competition Law [ . . . ] the practice developed under Art. 102 TFEU must be taken into account [ . . . ]. In this manner, individuals may already gain knowledge about the content of the norms, and thus legal security.

To my knowledge, this is the one case where the ‘political composition’ of the chamber appears to have impacted the outcome. Indeed, while Swisscom was



83

BGE 134 II 223, 4.2. See also BGE 133 III 568, 4.6. 85 BGE 137 II 199. 86 BGE 139 I 72. 84

104  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES decided by a chamber composed by three out of five of the judges elected by the right-​wing and eurosceptic Union démocratique du centre, in Publigroupe one of them was replaced by a judge elected by the centrist Parti démocrate-​chrétien, thus reversing the ‘political colour’ of the majority of judges. In a more recent judgment, the FSC has gone a step beyond Publigroupe. It reasoned that with the Swiss Statute on Cartels, the legislator aimed at having provisions that were ‘materially identical’ to those of EU competition law. It therefore ruled that interpretations should be permanently kept parallel, save for divergences justified, for example, by the different structure of the Swiss economy, and save if EU law would itself evolve to the point of becoming fundamentally different from the law that the Swiss legislator had taken as a model.87 *** As one can see from the examples given above, the principle whereby ‘adapted’ legislation should fundamentally be interpreted in a ‘euro-​compatible’ manner has gained much ground over the years. There is nonetheless resistance in some quarters of the FSC. For instance, while there is no doubt that Swiss legislation on VAT is extensively ‘adapted’ to EU law, FSC case law continues to consider that CJEU precedent is not a mandatory point of reference, but rather a mere ‘source of inspiration’.88

E.  CJEU References in the Case Law of the FSC: A Quantitative Analysis 1. Methodological limitations Ideally, the data presented should be based on comprehensive research of all the references to the CJEU made by Swiss judges. In the light of the basic features of the Swiss judicial system presented in sections B.3 and B.4 above, this would involve repeating the same keyword searches, in several languages, in the three multilingual databases of the federal courts, plus (at least) twenty-​six cantonal databases, some of which are also multilingual, and some of which are designed differently from the others. This would have been impractical, and on feasibility grounds the decision was taken to focus solely on the case law of federal courts. An exploratory search in the database



87 88

BGE 143 II 297. BGE 138 II 251, 2.5.1; see also BGE 139 II 346, 7.3.4 in fine.

CJEU CITATIONS IN SWISS CASE LAW  105 of the FSC in the three national languages gave the result of 2,181 judgments.89 To these, the judgments to be found on the databases of the other federal courts would have had to be added. The final number of judgments would have been much too high for the kind of in-​depth analysis required by the present project. With the agreement of the project leaders, it was decided to restrict our research to the published decisions of the FSC (see sections B.2 and B.5 above). The searches have been performed on the database of the FSC, which includes all its published decisions since 1957 (in addition to a generous selection of unpublished judgments). In the light of the above, our research does not purport to capture in its entirety the phenomenon of references to CJEU case law by Swiss judges. It does, however, allow us to capture all ‘important’ cases, and a representative picture cutting across nearly all areas of law. On this basis, full-​text searches were made in three languages of the ‘published cases’ databases of the federal courts. We found, selected, examined, and tagged 203 FSC judgments. The following section disaggregates this data.

2.  Frequency of references to the CJEU, by year and by legal fields The first data worth presenting concern the yearly breakdown of CJEU citations and are summarized in Table 5.1 and Figure 5.3. As one can observe, the number of citations increased significantly (from almost none) towards the end of the 1990s, then again around 2003‒05, and then after 2011. The overall trend can be readily explained by the fact that the early and mid-​1990s were the first period of intensive Europeanization of domestic law, and 2002 was the year when the first series of sectoral agreements entered into force. Factoring in a delay for cases to reach the Supreme Court, the peaks

Table 5.1  Number of cases where CJEU decisions were cited in Switzerland (number of citations in brackets) Period 1957–8​ 7 1988–9​ 2 1993–9​ 7 1998–​2002 2003–0​ 7 2008–1​ 2 2013–1​ 7 Total FSC

0 (0)

1 (1)

7 (12)

25 (76)

62 (354) 51 (187) 57 (275) 203 (905)

Source: Author’s own statistical elaboration of judgments downloaded from the website accessed 2 June 2020.

89 While efforts have been made to filter out ‘false positives’ from the list, it is still entirely possible that a small number of judgments counted in this number might not in reality refer to CJEU case law.

106  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES 15 10

0

1957 1959 1961 1963 1965 1967 1969 1971 1973 1975 1977 1979 1981 1983 1985 1987 1989 1991 1993 1995 1997 1999 2001 2003 2005 2007 2009 2011 2013 2015 2017

5

Civil Law Chamber Social Law Chamber

Criminal Law Chamber Total Federal Supreme Court

Public Law Chamber

Fig 5.3  Number of cases where CJEU decisions were cited in Switzerland Source: Author’s own statistical elaboration of judgments downloaded from the website accessed 2 June 2020.

in the graph above correlate well with these events. Subsequent ebbs and flows might be due to changes in bilateral law or domestic law generating more litigation in Europeanized areas. This is hypothetical, but it is tempting to see a relation between the last ‘peak’ in the graph and, on the one hand, the entry into force of yet more agreements (Schengen, revised Lugano Convention), while on the other, the entry into force of domestic reforms of dubious compatibility with pre-​existing agreements.90 If considered against all the published decisions in the database (starting in 1957 until our cut-​off date of 31 December 2017), the ‘frequency’ of FSC judgments referring to CJEU case law is little more than 1 per cent. However, measuring the frequency of references since 1957 makes little sense because, as noted above, the first references date from the 1980s and sustained practice can only be traced back to 1998. If we restrict our analysis to the years 1998‒2017, we find that the CJEU was cited in 195 published judgments out of 5,667 published judgments included in the database; that is, in approximately 3.5 per cent of cases. It would be interesting to have comparative data from EU Member States. At any rate, while referring to the CJEU has perhaps not become daily routine for the FSC, it is now far from being exceptional. If we break down the judgments by (broadly defined) domains, the picture we get is the following (see Figure 5.4 on the next page) There are two remarks to be made here. First, CJEU references are scattered across a broad legal field, but at the same time they are much more frequent in a handful of legal areas. This helps in putting

90

See eg BGE 139 I 16 and BGE 142 II 35.

CJEU CITATIONS IN SWISS CASE LAW  107 25

No of citations

20 15 10 5

m

rs th e O

Cr

im

Co

Co

pe

tit i

on

nt law ra ct in al an pr d oc t ed ort Fu ur nd al am law en Im tal rig m ht ig In ra s te tio lle n law La ctu bo al r & pro Pr iv so per at cia ty ei nt lr er ig ht n Pu at s i bl o n ic al ec l aw on om Pu bl ic ic law p So roc cia ur l s em ec e ur nt ity law Ta xl aw Tr ad el aw

0

1957−87

1988−92

1993−97

2003−07

2008−12

2013−17

1998−2002

Fig 5.4  Citations of CJEU decisions in Switzerland according to fields of law Source: Author’s own statistical elaboration of judgments downloaded from the website accessed 2 June 2020.

the 3.5 per cent figure given above in perspective: it is a rough average between sectors where the FSC hardly ever refers to the CJEU and sectors where this is much more frequent—​quite possibly, ‘daily routine’. Second, the results given in Figure  5.4 correlate well with the doctrines of ‘Euro-​compatibility’ explained above in section D. Indeed, the areas of law where CJEU citations are more frequent are those covered by those EU–​Switzerland Agreements that generate significant litigation: the AFMP (immigration law, social security law) and the Lugano Convention (private international law). The fact that criminal law comes under the radar after 2008 also seems to be linked to the entry into force of the Schengen Agreement. The other fields where CJEU references are frequent (competition law, public economic law, tax law) are those where domestic legislation has been approximated to EU law. In all of these areas, as explained above, the applicable hermeneutical principles require that CJEU case law be taken into account. It is therefore quite natural to find them in Figure 5.4. These general findings appear to be confirmed by a more in-​depth analysis presented in section E.3 below.

108  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

3.  Zooming in: the ‘when’, ‘why’, and ‘what’ of references to the CJEU The 203 judgments have been analysed one by one and coded. In this coding exercise, we have attempted to ascertain more precisely and reliably when and why the FSC refers to the CJEU, and how much the cited judgments tend to impact the decisions of the FSC itself. Concerning the ‘when’ (that is, ‘in what circumstances’), we have subdivided the judgments according to the Act in relation to which CJEU precedents are invoked. The results are the following (see Figure 5.5): • In 139 cases out of 203, the FSC referred to the CJEU while interpreting EU–​Switzerland Agreements:  89 times the FMPA, 43 times the Lugano Convention, 4 times the Schengen/​Dublin Agreements, and once the EU–​ Switzerland Procurement Agreement. • In fifty-​three cases, reference to CJEU precedents was made while interpreting domestic legislation—​mostly in ‘Europeanized’ fields (competition, market access, trademarks and patents, public procurement, VAT, some aspects of social and consumer law). • In eleven cases, reference was made to CJEU precedents in interpreting other international agreements, multilateral (eg the ECHR, the EFTA Convention, or WTO Agreements) and bilateral (eg agreements with Italy on judicial or customs cooperation).

11 FMPA 53 89

Lugano Sch/dub Procurement Domestic law Other IAs

1 4 43

Fig 5.5  Switzerland: Judgments citing CJEU by Act Source: Author’s own statistical elaboration of judgments downloaded from the website accessed 2 June 2020.

CJEU CITATIONS IN SWISS CASE LAW  109 The second aspect of the coding exercise has been to detect the legal logic presiding over the reference to the CJEU (‘why’). In this regard, we have classified the references into four categories: a. The FSC explicitly states, or clearly implies, that the reference is made pursuant to a (quasi-​)obligation. This expression covers both formal obligations, such as those relating to pre-​signature under Article 16 AFMP, and interpretive guidelines that the FSC has set itself, for example in relation to post-​ signature case law under the AFMP. b. The FSC explicitly states, or clearly implies, that the reference is made in a free comparative perspective; that is, not pursuant to a sense of (quasi-​) obligation to take CJEU precedents into account.91 c. The reference is unexplained, and little can be inferred as to the logic behind it. d. The FSC cites the CJEU in order to deny, as a matter of principle, that the latter’s precedents may be invoked to solve the point of law at hand. This includes cases where the FSC seeks to delimit or qualify otherwise existing (quasi-​)obligations to take such precedents into account.92 I would underscore that, in contrast to the previous coding, this coding includes elements of subjectivity on the part of the coder. Still, while there may have been a few decisions that were hard to call, and while further refinement and revisions are possible, I am confident that the results presented below by and large reflect FSC practice. The total breakdown is reflected in Figure 5.6. (Quasi-​)mandatory references are by far the largest category, followed by comparative references. There are a number of inconclusive references, and relatively few cases where the FSC has denied all relevance (as a matter of principle) to the CJEU case law invoked before it. If cross-​referencing the categories presented above in Figures 5.5 and 5.6, one finds a rather strong correlation between the ‘when’ and the ‘why’ of the references. In the case of EU–​Switzerland Agreements, 120 judgments out of 139 belonged to category (a); that is, obligation or quasi-​obligation. This was by far the prevalent category (86 per cent). ‘Comparative’ references to CJEU case law were made in ten judgments, most of them quite old. The references included in five judgments were too unclear or generic (category (c)). Four judgments sought to delimit (quasi-​)obligations relating to the interpretation of the AFMP or the Lugano

91 I will also include here the very rare cases where Swiss Courts take CJEU rulings into account as ‘subsequent practice’, ie complementary means to interpret multilateral Treaty obligations. 92 There may be cases where the FSC denies all relevance to a specific CJEU precedent, but still acknowledges implicitly or explicitly the relevance of CJEU precedents in general for the legal point at issue. Such cases are categorized under (a), (b), or (c), as the case may be.

110  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

10

9

(Quasi-)obligation 53

Comparative Unclear 131

Refusal

Fig 5.6  Switzerland: Legal logic behind CJEU references Source: Author’s own statistical elaboration of judgments downloaded from the website accessed 2 June 2020.

Convention, while recognizing their existence in principle, and were classified as category (d).93 As for judgments referring to CJEU case law on issues of domestic law, the prevalent category by far was category (b), ‘comparative’ references (thirty-​five judgments; that is, 66 per cent). This included some judgments rendered in fields of ‘autonomous adaptation’, such as VAT law, where one may have expected more committing category (a) references. Such references were found in nine judgments, all dealing with autonomously adapted legislation such as trademark law, competition law, or aspects of consumer or social legislation. Five more references were too vague to be conclusive (category (c)). Finally, in four cases, the FSC denied all relevance to the CJEU cases invoked by the parties before it (category (d)). These are fairly old, and include the now-​superseded Swisscom case discussed in section D.4 above. Finally, concerning cases relating to international agreements other than those concluded with the EU, the FSC referred to CJEU case law in several ways. In one case, it ruled that CJEU case law could be a ‘source of inspiration’ for interpreting multilateral agreements themselves inspired by EU Law (WTO Agreement on Public Procurement).94 In another case, it declined to refer to the CJEU precedents before it, but at the same time it opined that they could if necessary serve as a supplementary means to interpret the Aarhus Convention, given that CJEU case law is the ‘subsequent practice’ of a subset of Contracting Parties.95 Both cases have been categorized as (b), to denote the fact that the FSC recognized that as a matter of methodology, reference 93 For instance in BGE 142 V 2 one of the parties invoked CJEU precedent, but the FSC ruled that it could not be followed as it directly contradicted a specific rule negotiated between Switzerland and the EU. 94 BGE 141 II 113. 95 ibid 233.

CJEU CITATIONS IN SWISS CASE LAW  111 may be had to CJEU case law as a useful reference point for interpreting those treaties. There were six more category (b) cases, making this category the prevalent one in the class of cases dealing with other international obligations (eight out of eleven, 73 per cent). Two category (a) cases refer to provisions of the EFTA Convention that are parallel to those of the AFMP, and could equally well be considered two additional AFMP cases.96 The last case belongs to category (d): the FSC simply ruled that CJEU case law relevant to the AFMP could not be invoked to interpret a bilateral social security agreement between Switzerland and a third country.97 All in all, the results presented above confirm that, in the practice of the FSC, the vast majority of references to the CJEU are made out of (quasi-​)obligation—​mostly because they are made while interpreting international agreements that include specific wording to that effect, but also because such rules are implied (eg Schengen), or because of judge-​made rules of interpretation concerning Europeanized Swiss law. The above classifications do not address a related but distinct point, namely how influential the CJEU precedents referred to were in the solution of each case. I have attempted to ‘grade’ the judgments examined according to a four-​tier classification: 1. The CJEU precedent(s) cited had no impact on the solution of the case, including because CJEU case law was been deemed not relevant, not decisive, or because the FSC disagreed with it. 2. The effect of the CJEU precedent on the solution of the case is unclear, or else the CJEU precedent relates to an entirely marginal point of law. 3. The CJEU is cited with approval as ‘supporting’ authority for an argument already developed on other bases (ad abundantiam). 4. The CJEU precedent is the argument—​or one of the arguments—​supporting the decision on the relevant point of law (ratio decidendi). Nota bene: classifying a CJEU reference as ratio decidendi does not mean that it was the sole or dominant argument in the judgment. It merely means that, in deciding at least one of the points of law before it, the FSC quoted the CJEU as the main authority, or as one of the main authorities, and ruled in agreement with it (or at least, purported to do so).98 There may be judgments mixing several of these categories (eg following CJEU case law on some points and deeming CJEU judgments invoked by the parties irrelevant).99 In such cases, I have attempted to make a considered judgment on what references were overall most significant in the case. 96 BGE 132 V 82 and BGE 133 V 137. 97 BGE 142 V 48. 98 The question whether the FSC interpreted and applied CJEU precedent correctly is not one that has been examined here. The criterion used is whether, implicitly or explicitly, the FSC indicated that it agreed with the CJEU precedent or (as is more often the case) that it was applying that precedent to the facts before it. 99 BGE 142 III 466.

112  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES More generally, I would suggest that the results of such a coding reflect to a large extent the subjective reading of the coder, and should be taken with a pinch of salt. The total breakdown is pictured in Figure 5.7 below. Just as there is a correlation between the ‘when’ and ‘why’ of references to the CJEU, there is a correlation between the ‘why’ and the impact of CJEU precedent. Unsurprisingly, the category (d) cases where the FSC refused as a matter of principle to take into account CJEU precedent appear here in the ‘no impact group’. Consistently with their ‘free’ nature, ‘comparative’ references have impacts ranging from ‘none’ (seven cases)100 to ‘ratio decidendi’ (nine cases),101 with the most numerous category being ‘supporting authority’ (twenty-​eight cases). As for ‘(quasi-​) obligation’ cases, five of them appear in the ‘zero’ group, which is prima facie puzzling but is actually easily explained if one looks at each individual case.102 In seven more cases, the reference seems indecisive, or only relates to minor points. In the vast majority of cases, however, ‘(quasi-​)mandatory’ references involve the use of CJEU precedent as supporting authority (45 cases out of 131) or as ratio decidendi (74 cases out of 131) whereby, quite often, CJEU case law is quoted without much fanfare as a precedent to be simply applied.103

24 20 84

No impact Indecisive Supporting Ratio decidendi

75

Fig 5.7  Switzerland: Influence of CJEU cases on FSC decisions Source: Author’s own statistical elaboration of judgments downloaded from the website accessed 2 June 2020.

100 BGE 141 II 233. 101 ibid 113. 102 For instance, in one case, the FSC—​while reaffirming an obligation to interpret the provisions involved in line with relevant CJEU case law—​simply considered that the cases cited before it were not relevant to the point at issue (BGE 143 V 354). In another case, it found that CJEU precedent before it was in principle to be followed, but was too vague to be of help in resolving the issue at hand (BGE 143 IV 264). 103 For an excellent example, see BGE 140 II 112.

CJEU CITATIONS IN SWISS CASE LAW  113

4.  The most-​cited judgments of the CJEU The cases that have been cited in the most judgments of the FSC are the following fourteen: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

C-​413/​99 Baumbast (nine judgments) C-​85/​96 Martínez Sala (seven judgments) C-​109/​01 Akrich (seven judgments) C-​133/​78 Gourdain/​Nadler (six judgments) C-​200/​02 Zhu und Chen (five judgments) C-​160/​96 Molenaar (five judgments) C-​406/​92 Tatry/​Maciej Rataj (five judgments) C-​127/​08 Metock (five judgments) C-​115/​81 and 116/​81 Adoui and Cornuaille (five judgments) C-​30/​77 Bouchereau (five judgments) C-​348/​96 Calfa (five judgments) C-​144/​86 Gubisch Maschinenfabrik (five judgments) C-​370/​90 Singh (five judgments) C-​279/​93 Schumacker (five judgments)

In light of the data presented in Figure  5.5, it is perhaps unsurprising that the CJEU precedents cited in most judgments relate to free movement of persons or, to a lesser degree, to the Brussels/​Lugano system of judicial cooperation in civil matters.

F. Concluding Remarks In the Swiss experience, references to CJEU case law are far from being an exceptional event. Even just researching the published case law of the FSCs, the results number in the hundreds—​concentrated for the most part in the past two decades. While many factors may be at play in the decisions of the FSC to quote or not to quote the CJEU (the political outlook of judges, their greater or lesser openness to ‘foreign’ law, etc), the main driver of this phenomenon is fairly clear: over the past twenty-​five years, the Swiss legal order has progressively become more Europeanized, be it because of international obligations to transpose the acquis or as the result of policies of autonomous adaptation. The case law has followed suit. Indeed, even though one can find many examples of ‘comparative’ references, driven by the pure logic of lesson drawing and inter-​judicial dialogue, the normal case is that Swiss judges refer to the CJEU because this step is functionally required—​or even legally mandated—​in discharging their basic duty of interpreting applicable law.

114  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Indeed, the doctrines of ‘euro-​compatible’ interpretation—​mandated by international agreements, or developed by the FSC in response to the need for methodological clarity in tackling Europeanized law—​reinforce and structure the practice of referring to CJEU case law. In particular, they provide good keys to understanding the ‘when’ and ‘why’ of CJEU references; that is, the way in which they are distributed across the years, fields of law, and the possible legal rationales of references. Furthermore, they are a good predictor of the impact that CJEU cases may have in individual cases. As one may expect, ‘(quasi-​)mandatory’ references result in frequent invocation of CJEU precedent as authority, while more ‘comparative’ references tend to have less definite outcomes. Cases rejecting as a matter of method the relevance of CJEU case law are few and far between in current practice, and they reflect the need to delimit the ambit of ‘euro-​compatible’ interpretation, rather than a rejection of it. This is not to say that there are no inconsistencies in the case law. On the contrary, over the course of this research several individual judgments have been found that made a contestable application of the FSC’s own doctrines. Some such judgments, like Swisscom in section D.4 above, were evidence of how polarizing the issue of ‘euro-​compatible’ interpretation can be within the very same Division of the FSC. And quite clearly, the predictability and readability of case law would greatly benefit from a more standardized, less ad hoc approach—​at the moment, various judgments formulate the very same principles and doctrines using a whole range of different formulas. Still, the point stands that taken as a whole, the practice of the FSC in this matter is fairly consistent and logical—​more so than the author expected when embarking on this research. Further analysis will, of course, be required in order to consolidate and refine these results, to better trace the evolution of Swiss judicial practice, and to provide further details, for example, of whether the distinction between pre-​signature and post-​signature case law actually has importance in practice.

6

The Impact of the Court of Justice of the European Union on the Turkish Legal System Ulaş Karan*

A.  Background Information on Turkey and Its Legal System Turkey was established as a modern republic in 1923. According to current data, its population is nearly 82 million and GDP per capita was 10.863 USD in 2018.1 The history of the legal order in Turkey can be traced back almost 1,000 years. During the Ottoman period, Islamic law—​also called Sharia law—​was substantially in force. The primary sources were the Qur’an and the Sunna (a set of Muslim customs and rules based on the words and acts of the Prophet Muhammad) and secondary sources were ijma (consensus of Islamic scholars and precedents), qiyas (the method of analogical reasoning) and ijtihad (the application of critical personal reasoning in the interpretation of Islamic law).2 Besides Islamic law, orders of the monarch were regarded as binding rules, and that is called customary law. Beginning with the reform movements in 1839, Islamic law fell into disuse in certain areas and some modern laws were adopted into the legal system. For the most part of these, French laws were transcribed and enacted as new laws (such as the Commercial Code of 1850 and the Criminal Code of 1858). Following the foundation of the Republic of Turkey in 1923, the Turkish legal order strictly followed laicism and became very much a part of the civil law systems. Subsequently, comprehensive and rapid law reform was undertaken and several codes were adopted in all areas, inspired by contemporary European legislation such as the Italian Penal Code of 1899, the German Commercial Code of 1897 and Code of Criminal Procedure of 1877, the Swiss Civil Code of 1907 and Code of Obligations of 1911. Besides, the Turkish Civil Procedure Code of 1927 * The author would like to thank Arie Reich and Hans Micklitz for their broad contribution to this chapter. He is also indebted to Ceren Mensiz and Birce Altın for their great support in accessing and collecting resources needed for this research. 1 See accessed 1 May 2020. 2 Önder Bakırcıoğlu, ‘The Principal Sources of Islamic Law’ in Tallyn Gray (ed), Islam and International Criminal Law and Justice (Torkel Opsahl Academic EPublisher 2018) 15ff. Ulas¸ Karan, The Impact of the Court of Justice of the European Union on the Turkish Legal System In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0006.

116  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES was adopted based on the Civil Procedure Code of the Swiss canton of Neuchatel of 1925 and the Turkish Bankruptcy and Enforcement Code was enacted taking the Swiss Bankruptcy and Enforcement Code of 1889 as a model.3 These laws have been renewed during the EU accession period, which commenced in 1999. Accordingly, the Turkish legal system consists of codified laws and is based on statutory law, not judicial precedents. Heavily inspired by the French system, it also adopts the separation between ordinary jurisdiction and administrative jurisdiction. The existing Constitution is the fourth that has been adopted after the fall of the Ottoman Empire and has been in force since 1982, with major amendments, some of which have been inspired by the EU accession process. Article 2 of the Constitution describes the state as ‘a democratic, secular and social state governed by the rule of law. . . respecting human rights’.4 The provisions of the Constitution are fundamental legal rules binding upon the legislative, executive, and judicial organs, as well as the administrative authorities. Moreover, they also have horizontal effect on other private institutions and individuals.5 The Constitution divides the powers of the state among three authorized organs. The legislative branch consists of a unicameral parliament with 600 members elected to 5-​year terms. The current political regime is the result of a referendum held in 2017. According to the newly adopted regime, the executive branch consists of an elected president for a five-​year term described as a cumhurbaşkanlığı hükümet sistemi (‘presidential government system’) by the drafters. This appears like a presidential system in some respects; however, it lacks the essential checks and balances. Ministers are appointed by the president without a vote of confidence. The judicial branch is established independently of the legislature and the executive;6 however, other related provisions set forth in the Constitution or relevant laws undermine this basic principle to a large extent. The last general and local elections were held in 2018 and 2019, respectively, so the next elections are expected to be held in 2023 and 2024. Turkey has been a part of the international legal order since the establishment of the republic. Following the Treaty of Lausanne in 1923 and membership of the League of Nations in 1932, Turkey has been a founding member of the United Nations, the Organisation for Economic Co-​operation and Development, and the Organization for Security and Co-​operation in Europe since their establishment, and a Member State of the Council of Europe since 1949. Turkey is also a member of the G207 and the World Trade Organization (WTO) and in addition

3 Kemal Gözler, Genel Hukuk Bilgisi (Ekin Yayınevı 2008) 7. 4 For the English translation of the Turkish Constitution, see accessed 1 May 2020. 5 Article 11. 6 Article 9. 7 The G20 is an international forum for the governments and central bank governors from nineteen countries and the European Union (EU).

THE CJEU AND THE TURKISH LEGAL SYSTEM  117 has been in accession negotiations with the EU since 1963. International treaties that have been duly put into effect have the force of law according to Article 90/​ 5 of the Constitution. Despite the openness to international law adopted in the Constitution, as mentioned below in section D, the extent of citing foreign and international law in general is quite limited, and mainly restricted to the European Court of Human Rights (ECtHR), although to date no qualitative or quantitative research has been carried out on this issue.

B.  Main Features of the Judiciary The judicial system in Turkey has a multipartite structure at the levels of first-​ instance courts, appellate courts, and higher courts. Criminal courts of first instance are divided into penal courts of first instance, and aggravated felony courts, on the basis of the severity of crimes. Civil courts of first instance are civil courts of peace and civil courts of general jurisdiction. Specialized courts are established to deal with cases in their jurisdiction and they rank equally with a court of general jurisdiction. Offices of Public Prosecutors are also found at first-​instance level. In 2016, the former two-​tier system was replaced by a three-​tier system after the introduction of Regional Courts of Appeal. These appellate courts have the authority to examine cases coming from courts of first instance in terms of form and substance. As a result of the separation between ordinary courts (as civil and criminal courts) and administrative courts, the Court of Cassation8 and the Council of State9 are the final instances for reviewing decisions and judgments rendered by civil and criminal courts and administrative courts, respectively. These higher courts are also the first-​and final-​instance courts for dealing with special cases prescribed by relevant laws. The Court of Jurisdictional Disputes was established as a final authority to settle disputes between these courts. Historically, Turkey is the third state in Europe to establish a constitutional court following Italy and Germany. The Constitutional Court of the Republic of Turkey examines the constitutionality of laws, decrees having the force of law, and the Rules of Procedure of the Turkish Grand National Assembly, as well as individual applications. First-​instance courts of administrative jurisdiction are assigned to deal with administrative cases. These are cases in which the respondent is, with some exceptions, a public institution. Administrative courts are split into two categories as 8 Article 154(1) of the Constitution: ‘The Court of Cassation is the last instance for reviewing decisions and judgments given by civil courts that are not referred by law to other civil judicial authority. It shall also be the first and last instance court for dealing with specific cases prescribed by law.’ 9 Article 155(1) of the Constitution: ‘The Council of State is the last instance for reviewing decisions and judgments given by administrative courts and not referred by law to other administrative courts. It shall also be the first and last instance for dealing with specific cases prescribed by law.’

118  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES administrative courts and tax courts. Tax courts deal with tax disputes, while administrative courts deal with other administrative disputes. Administrative courts are courts of general jurisdiction in the administrative judiciary branch, which means that they deal with all administrative cases that remain outside the jurisdiction of the Council of State and tax courts. In the Turkish legal system, precedents are a supplementary source of law, not a primary source, as the legal system falls within the civil law system. Consequently, a judgment rendered by a court is not in principle binding on other courts. For instance, the non-​binding status of precedents is reflected in Article 1(3) of the Turkish Civil Code, which states that a judge is supposed only to draw inspiration from judicial decisions while deciding. However, in practice, judges tend to follow the decisions of superior courts and their own previous decisions and render similar rulings in similar cases.10 In courts with a panel of judges, judges are allowed to write dissenting opinions, while concurring opinions only appear in the Constitutional Court. Judicial reasoning is a long-​standing issue at all levels of the Turkish judiciary and judges have usually asserted their workload against criticism brought with regard to lack of proper reasoning in their decisions. As is evident from the above-​mentioned provisions, the Court of Cassation and the Council of State are entitled by the Constitution to review decisions of first-​ instance courts. However, judgments of the chambers of the Court of Cassation and the Council of State are not binding on other cases that are heard in other courts. On the other hand, those higher courts are entitled to render judgments on unification of conflicting judgments which have binding force on all judicial authorities by their General Assemblies on the Unification of Judgments. According to Article 45 of the Law of Court of Cassation, a parallel provision with Article 40 of the Law of the Council of State, decisions of the Assembly of Chambers bind the Assembly of Chambers and chambers of the Court of Cassation and all other courts on similar legal issues. Regarding techniques of judicial reasoning, Article 1 of the Turkish Civil Code may be a guide. This article literally states that a judge must decide within statutory law. If no rule is applicable to a case, the judge must decide in accordance with customary law and, if no customary law rules exist on the issue, must act as if a legislator.11 In courts that sit in panels, the decision on any issue may be taken unanimously or by a majority of votes of the judges. Dissenting opinions and their



10 11

Kemal Gözler, Hukuka Giriş (Ekin Yayınevı 2011) 167. Turkish Civil Code (Law No 4701): Application and Sources of the Law, Article 1—​The law applies, according to its wording or essence, to all legal matters which it refers to. In the absence of an applicable provision, the judge decides in accordance with customary law, and in the absence of customary law, in accordance with a rule that acts as if a legislator. The judge should benefit from doctrine and precedents while deciding.

THE CJEU AND THE TURKISH LEGAL SYSTEM  119 justifications are indicated in decision reports. Junior judges are first to vote in the voting order in case they may be under the influence of older judges in the court.12 The current number of judges and prosecutors at all levels was 19,417 in 2018.13 Civil and criminal courts operate in all provinces (eighty-​one) and in most districts, as well as administrative courts in most of the major provinces (forty-​four). The total number of courts of first instance and courts of appeal are 6228 and 371, respectively.14 As of 1 November 2019, the total numbers of pending cases in civil, criminal, and administrative courts are 2,026,848, 1,790,522, and 263,553, respectively.15 According to official statistics provided by the Ministry of Justice, the average workload of civil and criminal judges, administrative judges, and prosecutors in courts of first instances are 806 (civil and criminal), 433 (administrative) and 1,661 (prosecutors), respectively in 2018. Those figures were 1,145, 654 and 1,411 in 2011,16 which indicates that, apart from prosecutors, the workload of the judges of courts of first instance has been decreasing in the past decade. A similar situation seems to apply to the Court of Cassation, as numbers of cases for each judge and prosecutor were 2,868 and 3,694, respectively in 2018, compared with 3,909 and 4,270 in 2011.17 However, the caseload of the Council of State is increasing: whereas the number of cases per judge was 2,676 in 2018, it was 2,557 in 2011.18 Thus, referring to workload in response to criticism concerning lack of proper reasoning in their decisions seems to have an objective basis on the one hand, but also cannot be regarded as a fully convincing excuse on the other. Apart from a small minority of administrative judges, all judges and prosecutors should have a bachelor’s degree in law from a Turkish university. In order to become a trainee judge or prosecutor, candidates should take a multiple-​choice exam organized by the Ministry of Justice (MoJ). In the second phase, a committee of five persons from the MoJ interviews candidates that scored at least 70 out of 100 in the written exam. These days, it is generally perceived that interviews have not been conducted properly for decades, and usually candidates that have a close relative or a contact with the government are chosen to become members of the judiciary. Following a positive result from the interview, candidates must undergo a term of two years as a trainee in courts and in the Turkish Justice Academy. At the end of the traineeship period, trainees have to pass a written and oral exam conducted by the MoJ Department of Training, with the participation of senior ministry officials. 12 Code of Criminal Procedure, Arts 224(2) and 229. 13 See Council of Judges and Prosecutors, ‘2018 Activity Report’, 72  accessed 1 May 2020. 14 ibid 82‒85. 15 See National Judiciary Informatics System accessed 1 May 2020. 16 Ministry of Justice General Directorate of Judicial Record and Statistics, ‘Judicial Statistics 2018’, 4–​5, 256  accessed 1 May 2020. 17 ibid 242. 18 ibid 292.

120  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The prevalent procedure for appointment as a judge or prosecutor cannot convincingly be said to be conducive to promoting the independence of the judiciary. Under Article 159 of the Constitution, the Council of Judges and Prosecutors (CJP) is established and exercises its functions in accordance with the principles of the independence of the courts and security of tenure of judges. However, other provisions in the Constitution contradict the independence of the judiciary. Foremost among them is the structure of the CJP and the selection procedure of its members. The CJP consists of thirteen members. The Minister of Justice (who is also the president of the CJP) and deputy Justice Minister are also members of the Council. Along with them, four members of the Council are elected by the President of Turkey. Seven members of the CJP are elected by the Grand National Assembly of Turkey. Although the CJP ‘shall exercise its functions in accordance with the principles of the independence of the courts and security of tenure of judges’, considering that the majority of MPs are also affiliated to the ruling party, eleven members of the CJP are appointed directly or indirectly by the executive, which leads to a lack of independence. The term for members is four years and members can be re-​elected. According to Article 159(8) of the Constitution, the CJP has the authority to conduct proceedings regarding admission of judges to criminal, civil, and administrative courts, as well as public prosecutors, also regarding appointment, transfer to other posts, delegation of temporary powers, and promotion. The CJP also makes decisions on removal from office and imposes other disciplinary penalties. Finally, the CJP has the authority to abolish a court, or to make changes in its territorial jurisdiction, as well as exercising any other functions given to it by law.

C.  Relations with the European Union The history of EU–​Turkey relations goes back to the 1950s. These fluctuating relations have always had a great influence on the democratization process and human rights policy in Turkey. Despite the European Convention on Human Rights, major international human rights treaties were not ratified by Turkey until the early 2000s, which was the era when the accession process was accelerated. Leading law reform packages were the consequences of closer ties between Turkey and the EU. Turkey and the EU maintain their relations, which they started with ‘association’ in 1963, with the process for full membership of Turkey. In 1963, the Ankara Agreement establishing an Association between the European Economic Community (EEC) and Turkey was signed by Turkey, the EEC, and by the Member States of the Community.19 Again in 1987, Turkey submitted a formal request for 19 Agreement Creating an Association between the Republic of Turkey and the European Economic Community Signed at Ankara, 1 September 1963 OJ 3687/​64 (Ankara Agreement). For the full text of

THE CJEU AND THE TURKISH LEGAL SYSTEM  121 full membership. The European Commission rejected the request in 1989, on the grounds that Turkey manifested grave democratic deficiencies. However, it confirmed that Turkey was still eligible for full EU membership. Both association and the status of ‘candidate state’ require harmonization of laws. The Ankara Agreement builds association in the framework of economic integration, including customs union and free movement of persons, services, and capital.20 This presents a framework for Turkey’s gradual integration into the Community. The instruments that followed, such as the Additional Protocol of 1970,21 and Decision No 1/​95 of the Association Council,22 filled this frame. According to Article 28 of the Ankara Agreement: [a]‌s soon as the operation of this Agreement has advanced far enough to justify envisaging full acceptance by Turkey of the obligations arising out of the Treaty establishing the Community, the Contracting Parties shall examine the possibility of the accession of Turkey to the Community.

Hence, harmonization of laws is inherent in the gradual integration model of this association.23 As a first instrument, the Additional Protocol of 1970 followed the Agreement and regulated issues regarding attainment of free movement of goods (customs union) and adjunct free movement of persons and services, approximation of economic policies, and approximation of laws.24 Decision No 1/​95 of the EC–​Turkey Association Council, which was established by the Ankara Agreement to ensure implementation and promotion of the association regime, and was given power to take decisions, is the most detailed instrument referring to approximation of legislation. In this context, ‘approximation of legislation’ was set out as a separate chapter, with protection of intellectual, industrial, and commercial property rights, competition, trade defence instruments,

the agreement in English, see accessed 1 May  2020. 20 Ankara Agreement, Arts 10‒21. 21 Additional Protocol signed at Brussels on 23 November 1970 OJ L293/​4 (Additional Protocol). For the full text of the agreement in English, see accessed 1 May  2020. 22 Decision no 1/​95 of the EC–​Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union [1995] 96/​142/​EC (Decision no 1/​95). For the full text of the decision in English, see https://​eur-​lex.europa.eu/​legal-​content/​EN/​TXT/​PDF/​?uri=CELEX:21996D0213( 01)&from=EN accessed 1 May 2020. 23 İlke Göçmen, ‘Avrupa Birliği ile Türkiye İlişkileri Çerçevesinde Türk Mahkemelerinin Avrupa Birliği Hukuku Karşısındaki Tutumuna Yönelik Bir Öneri: AB-​Dostu Yorum Yöntemi’ (2014) Ankara Üniversitesi Hukuk Fakültesi Dergisi 63(1) 135. 24 See the Additional Protocol, Art 2 and following Art 36 and following Art 43 and following articles, respectively.

122  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES government procurement, direct and indirect taxation regulated under this chapter.25 Moreover, the Decision provides a general obligation clause stating: [in] areas of direct relevance to the operations of the Customs Union26 . . . Turkish legislation shall be harmonized ‘as far as possible’ with Community legislation.27

Last but not least, the Decision includes a clause regarding ‘interpretation’ stating: The provisions of this Decision, in so far as they are identical in substance to the corresponding provisions of the Treaty establishing the European Community shall be interpreted for the purposes of their implementation and application to products covered by the Customs Union, in conformity with the relevant decisions of the Court of Justice of the European Communities.28

Pursuant to its formal request for full membership in 1987 and rejection by the European Commission in 1989,29 a Customs Union was established in 1996. Turkey obtained the status of candidate state at the 1999 Helsinki Summit Meeting and started membership negotiations in October 2005. For full membership, every candidate state must fulfil the Copenhagen criteria (political, economic, and EU acquis criteria) and besides adapting the acquis, it must have the administrative and institutional capacity to implement it effectively. The negotiations are carried out through the Negotiating Framework.30 This instrument elaborates the approximation of laws. According to the Negotiating Framework: Accession implies the acceptance of the rights and obligations attached to the Union system and its institutional framework, known as the acquis of the Union. Turkey will have to apply this as it stands at the time of accession. Furthermore,

25 For instance, Decision no 1/​95, Art 39(1) states: ‘With a view to achieving the economic integration sought by the Customs Union, Turkey shall ensure that its legislation in the field of competition rules is made compatible with that of the European Community, and is applied effectively.’ 26 These areas are commercial policy and agreements with third countries comprising a commercial dimension for industrial products, legislation on the abolition of technical barriers to industrial products, competition, and industrial and intellectual property law and customs legislation (ibid Art 54(2)). 27 ibid Art 54 (1) 28 ibid Art 66. 29 The official statement by the ECC was: ‘The Community is unable to accept any new members before completing its internal integration. Although it is eligible to join the Community, Turkey should develop further in economic, social and political terms. Therefore, it is appropriate to continue the relations within the framework of the Association Agreement.’ So it seems it was the EU that triggered developments between 1989 and 1999. 30 European Council, ‘Negotiating Framework’ (3 October 2005)  Luxembourg (Negotiating Framework) accessed 1 May 2020.

THE CJEU AND THE TURKISH LEGAL SYSTEM  123 in addition to legislative alignment, accession implies timely and effective implementation of the acquis.31

Moreover: In all areas of the acquis, Turkey must bring its institutions, management capacity and administrative and judicial systems up to Union standards, both at national and regional level, with a view to implementing the acquis effectively or, as the case may be, being able to implement it effectively in good time before accession. At the general level, this requires a well-​functioning and stable public administration built on an efficient and impartial civil service, and an independent and efficient judicial system.32

Considering the reference to ‘implementing the acquis effectively’, this provision can be interpreted as an indirect obligation on the Turkish judiciary to harmonize its practice with the acquis and the jurisprudence of the Court of Justice of the European Union (CJEU). However, as discussed in section D below, this obligation is almost disregarded by the Turkish judiciary in most instances. On the other hand, EU–​Turkey relations have also been manifested in the judicial organs of both parties. Representatives of the Turkish judiciary have paid visits to the CJEU in recent years.33 However, those visits were usually a part of projects mostly funded by the EU and have not created continuous relations or cooperation between the EU and Turkish judicial organs.34 The Regular Progress Report of 2016 on Turkey states that—​regarding its ability to assume the obligations of membership—​Turkey has continued to align with the acquis. However, despite visa liberalization-​related work, Turkey’s efforts continue at a limited pace. The report points out that Turkey is well advanced in the areas of company law, trans-​European networks, and science and research, and has achieved a good level of preparation in the areas of free movement of goods, intellectual property law, financial services, enterprise and industrial policy, consumer and health protection, customs union, external relations, and financial control.35 31 ibid Art 10. 32 ibid Art 17. 33 For instance, the Turkish Constitutional Court accessed 1 May 2020; Council of State accessed 1 May 2020. 34 For instance, within the scope of the joint European Union and Council of Europe Programme on ‘Enhancing the Role of the Supreme Judicial Authorities in Respect of European Standards’, 40 persons from the Council of Judges and Prosecutors, 80 members of the Council of State, 220 members the Court of Cassation, and 65 persons from the Constitutional attended study visits to the ECtHR and CJEU between 2010 and 2013; see accessed 1 May  2020. 35 European Commission, SWD 366 signed in Brussels on 9 November 2016, Turkey 2016 Report (Final) 18 (Turkey 2016 Report).

124  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES In the areas of political criteria, human rights, and protection of minorities36 and environment and climate change,37 much remains to be done to ensure legislative alignment with the acquis. The political climate in Turkey in recent years has caused harsh criticism from EU institutions and Member States with respect to human rights and related fields. According to the latest progress report published in 2018, the EU Commission, along with other fields, criticized ‘the broad scale and collective nature, and the disproportionality of measures taken since the attempted coup under the state of emergency, such as widespread dismissals, arrests, and detentions’.38 As can also be traced from progress reports, EU–​Turkey relations, following strong enthusiasm in 2000s, have been grinding to a standstill for years.

D.  Citation of CJEU Decisions by the Courts According to Article 141 of the Turkish Constitution, all court hearings are to be open to the public; consequently, all case files should be available to the public. However, access to the judgments of the courts at all levels depends on the type of court and, in any case, access is strictly limited. None of the judgments of courts of first instance or appellate courts are available to the public. Access to court jurisprudence is only available for the Court of Cassation and the Council of State. In respect of traditional resources, only a few cases are published by the monthly or quarterly journals of the Council of State39 and the Court of Cassation,40 as well as by some private law journals. However, the higher courts allow limited access to their databases for public use. This means that, for researchers, only a limited number of cases are available and so research on the Turkish judiciary may reveal only the tip of the iceberg and is far from presenting a clear picture of the existing situation in Turkey. For the purpose of this research, those journals were disregarded, as they lack a proper index so that it is not possible to carry out a search by using a set of keywords. Following the establishment of the National Judiciary Informatics System (NJIS), all judgments given by courts at all levels are accessible through a digital database available on the internet.41 The NJIS maintains different web portals 36 The report underlines that the anti-​terror law and its implementation, freedom of assembly, and non-​discrimination in law and practice are not in line with the acquis (ibid 25). 37 ibid 86. 38 European Commission, SWD 153 signed in Strasbourg on 17 April 2018, Turkey 2018 Report (Final) 3 (Turkey 2018 Report). 39 See Danıştay Dergisi (Journal of the Council of State) accessed 1 May 2020. 40 See Yargıtay Kararlar Dergisi (Journal of Case Law of the Court of Cassation) accessed 1 May 2020. This journal has been published since 1975 and only printed versions are accessible. 41 For further information on the NJIS, see accessed 1 May 2020.

THE CJEU AND THE TURKISH LEGAL SYSTEM  125 for citizens, lawyers, and court experts as well as civil, penal, and administrative courts. However, only courts can access rulings of their own or rulings of courts at the same level, whereas lawyers can only access their own case files. Citizens can get limited information, but only concerning cases they are party to. This situation weakens the accessibility of jurisprudence not only for researchers, but also for the legal community as a whole. The existing digital databases, which are elucidated above and below in detail and are accessible without a subscription, enable research covering only the judgments and decisions of Turkish higher courts, namely the Constitutional Court, the Court of Cassation, and the Council of State. All the decisions and judgments of these courts and tribunals are included in these databases, although, as is explained below, only to a limited extent. As regards judgments accessible through the relevant databases of the higher courts, apart from the database of the Turkish Constitutional Court, these provide mostly cases from the past decade. Along with official databases provided by the higher courts, commercial databases are also created by private companies. Within the scope of the project, three databases which are accessible via subscription have additionally been consulted.42 In addition, only the judgments of the courts in the strict sense are accessible, but not the arguments of the parties. As a result, it is impossible to determine who the ‘agents’ of influence are, that is, whether a CJEU citation was brought before the citing court by the representatives of the parties, or is a result of the court’s own research. Thus, the research43 substantially covers largely the past ten years and cannot present the external impact of the judgments of the CJEU on the Turkish legal system prior to that. As to judgments and decisions of courts of first instance, these are only accessible to judges and prosecutors of those courts, nor are they published anywhere, so they are not included in this research. As can be seen below, most of the citations to judgments of the CJEU are related to main areas of law such as competition law, labour law, and intellectual property law; here, possible official databases provided by the relevant government bodies have been explored. Besides the database provided by the Turkish Competition Authority concerning judgments of the Council

42 These databases are as follows: ‘Kazancı’ ( accessed 1 May 2020), ‘Lexpera’ ( accessed 1 May 2020) and ‘Hukuktürk’ ( accessed 1 May 2020). 43 The research was conducted by using Turkish keywords identified as related with the CJEU. These keywords in Turkish are as follows: ‘Avrupa Toplulukları Adalet Divanı’ (‘Court of Justice of the European Communities’), ‘Avrupa Birliği Adalet Divanı’ (‘Court of Justice of the European Union’), ‘Avrupa Adalet Divanı’ (the ‘European Court of Justice’), ‘ATAD’ (the abbreviation for the Court of Justice of the European Communities), ‘ABAD’ (the abbreviation for the Court of Justice of the European Union), ‘AAD’ (the abbreviation for the European Court of Justice), ‘Divan’ (an acronym used sometimes instead of these courts), ‘Avrupa Birliği’ (‘European Union’), ‘AB’ (the abbreviation used for the EU), ‘Avrupa Toplulukları’ (‘European Communities’), and ‘müktesebat’ (‘acquis communautaire’).

126  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES of State,44 no government bodies provide any databases related to their scope of authority.45 Beginning with the Turkish Constitutional Court (TCC), all the judgments of the Court regarding the constitutionality review of laws, decrees having the force of law, and the Rules of Procedure of the Grand National Assembly of Turkey in respect of both form and substance have been published in the Official Gazette, as well as on the official website of the Court.46 Thus, researchers can access all those judgments rendered by the Court in this manner. Nevertheless, judgments concerning individual applications are not fully accessible. Although there is a clear proviso that the decisions taken at the end of a constitutionality review are to be published in the Official Gazette immediately, this does not happen in practice.47 Pursuant to Article 81(4) of the Internal Regulation of the Constitutional Court, all decisions of the Sections and those that bear principal significance from an admissibility point of view from amongst the decisions of the Commissions are to be published on the website of the Court. In addition, according to subsection five of this article, ‘the decisions which are determined by the President of the Section which bear the quality of being pilot decisions made by the Section or bear principal significance in terms of displaying case law shall be published in the Official Gazette.’ Taking into account all of these provisions, it seems that the Court has the sole discretion to publish admissibility decisions issued following individual applications. Thus, as of 15 August 2019, among 186,701 cases that have been handled by the Court in the first seven years of the individual application process,48 only 6,239 decisions or judgments have been published on the website of the Constitutional Court.49 Therefore, since the establishment of the Court in 1962, together with the 5,092 judgments given with regard to constitutionality review, the total number of cases accessible as part of this research is 11,331. As for the Court of Cassation, a digital search engine for judgments of the Court is accessible to those who are interested without a subscription. As of 15 August 2019, 4,491,342 cases are accessible.50 According to the official annual statistics issued by the Court, the total number of judgments rendered by the Court only in 2014, 2015, 2016, 2017, and 2018 was respectively 884,317; 937,999; 44 See accessed 1 May 2020. 45 For instance, the two competent authorities in intellectual property law, namely the Turkish Patent and Trademark Office and the General Directorate of Copyrights, provide no information and have no database concerning implementation of relevant legislation. The same situation applies in the fields of labour and social policy. 46 See accessed 1 May  2020. 47 Under the Law on Establishment and Rules of Procedures of the Constitutional Court (Law no 6216), Art 50(3), ‘the decisions of the sections regarding the merits . . . shall be published on the web page of the Court. Issues pertaining to which of such decisions are to be published in the Official Gazette are indicated in the Internal Regulation.’ 48 See accessed 1 May  2020. 49 See accessed 1 May  2020. 50 For the Court of Cassation, see accessed 1 May 2020.

THE CJEU AND THE TURKISH LEGAL SYSTEM  127 649,195; 628,588, and 511,508.51 Thus, the total number of judgments in the past five years comes to 3,611,607. The Court was established in 1868 and—​taking into account its long history, as well as considering the workload of the Court over 150 years—​the number of judgments provided by the Court in the database is very low. Moreover, in most cases, the Court posts hundreds of clone cases, rather than selecting leading cases. The oldest-​dated cases accessible in the database rendered by the Court are from 1997, and none of the previous cases are accessible. The vast majority of the cases accessible have been rendered since 2005. As regards the Council of State, similar to the Court of Cassation, a search engine for samples of leading cases is accessible through the official website of the Court. This search engine, as with the Court of Cassation, uses the NJIS infrastructure to provide judgments given by the Court. As of 15 August 2019, only 8,204 cases are accessible.52 When the research was initially conducted in 2018, as of 15 March 2018, 21,863 cases were accessible. Strangely enough, the Council of State seems to have reduced the number of accessible judgments, rather than increased them. According to official annual statistics issued by the Court, the total number of judgments rendered by the Court in 2014, 2015, 2016, 2017, and 2018 was 141,543, 159,358, 133,104, 145,096, and 135,368, respectively.53 Therefore, in comparison with the total caseload of the Court, the number of judgments that are accessible through the database is quite low, but it is likely nevertheless to constitute a representative sample for our purposes. As for the Court of Cassation, the oldest-​dated cases accessible in the database rendered by the Court are from 2010, and none of the previous cases are accessible. The vast majority of the cases accessible have been rendered after 2015, and before that the total number of cases accessible between 2010 and 2015 is only 281. Having looked at the databases provided by the Court of Cassation and the Council of State, no explanation is apparent as to the selection criteria for the cases, or whether certain fields of law are included or not. Besides, with regard to the Court of Cassation, the time period covered by the decisions included in the database is 1997‒2019 and 2010‒19 for the Council of State. Due to the lack of transparency with regard to the higher courts, mostly rulings of the past ten years were within reach and taken into account. Although EU–​Turkey relations 51 See Court of Cassation, ‘Annual Report of the Court of Cassation—​2014’, 50–​52 accessed 1 May 2020; Court of Cassation, ‘Annual Report of the Court of Cassation—​2015’, 60–​62 accessed 1 May 2020; Court of Cassation, ‘Annual Report of the Court of Cassation—​2016’, 33–​34 accessed 1 May 2020; Court of Cassation, ‘Annual Report of the Court of Cassation—​2017’ accessed 1 May 2020; Court of Cassation, ‘Annual Report of the Court of Cassation—​2018’, 43–​44 < www.yargitay.gov.tr/​ documents/​2018-​faaliyet.pdf> accessed 1 May 2020. 52 For the Council of State, see accessed 1 May 2020. 53 See accessed 1 May 2020.

128  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES were better and Turkey was engaged in extensive harmonization efforts with the acquis in the 1990s and in the early 2000s, considering the limited access to the jurisprudence of the Turkish judiciary, there is no chance of finding more CJEU citations in judgments rendered before the past decade. Although the commercial databases in some instances incorporate many more judgments than the official databases, they usually include only the judgments published on official websites or journals of the higher courts, and thus do not provide any more information than the official resources.54 The judgments found within the context of this research in the commercial databases are usually identical. See Tables 6.1 and 6.2 and Figure 6.1 for the number of cases where CJEU decisions were cited between 1960 and 2016.

Table 6.1  Number of cases where CJEU decisions were cited in Turkey (1960–​2016) (number of citations in brackets) 2009–​181

Period Constitutional Court

3 (3)

Court of Cassation

650 (1034)

Council of State

32 (93)

Source: Author’s own research from access to official and commercial databases. 1 As of 1 October 2018.

Table 6.2  Number of cases where CJEU decisions were cited by Turkish higher courts over time Court of Cassation 2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

Total

1

–​

92

32

21

194

97

58

133

22

650

Council of State

2003 2004 2005–​09 2010 2011 2012 2013 2014 2015 2016 2017 2018 Total 2

1

–​

1

–​

8

1

1

1

–​

17

–​

32

Source: Author’s own research from access to official and commercial databases.

54 For instance, as of 15 August 2019, the total number of judgments rendered by the Court of Cassation and the Council of State accessible from the ‘Lexpera’ database is 2,041,367 and 167,452, respectively.

THE CJEU AND THE TURKISH LEGAL SYSTEM  129 250

No of citations

200 150 100 50

20 18

20 17

20 16

20 15

20 14

20 13

20 12

20 11

20 10

20 09

20 04 20 05 −0 8

20 03

0

Year Court of Cassation

Council of State

Constitutional Court

Fig 6.1  CJEU citations by Turkish courts (2003–​18) Source: Author’s own research from access to official and commercial databases.

The Constitutional Court cites various ECtHR judgments in almost every decision or judgment. This tendency has increased with the adoption of individual application procedures. However, since 1962 it has cited CJEU judgments only thrice.55 The first judgment (NBB) cited the Google Spain case,56 which is a leading case in terms of the right to be forgotten, and which played an important role in the reasoning of the Court to find a violation in that case.57 The second judgment was about imposing an administrative fine for the outflow of foreign currency without prior permission and the Court referred to the Chmielewski case,58 which related to a fine imposed for infringement of the obligation to declare foreign currency to the customs authorities at the time of someone’s entry to an EU Member State.59 The third and final judgment of the Constitutional Court involved a refusal to grant a work permit for work in a brothel. The Court discussed whether prostitution can be regarded as a profession,60 and cited the Aldona case.61 With the exception of NBB, neither of the other two judgments

55 See NBB, B No 2013/​5653, 3 March 2016, para 46; SK (B), B No 2014/​18275, 4 July 2018; Orhan Gürel, B No 2015/​15358, 24 May 2018. All cases are accessible at accessed 1 May 2020. 56 See Case C-​131/​12 Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD) Mario Costeja González [2014]. 57 See NBB, (n 55), para 46. 58 See Case C-​255/​14 Robert Michal Chmielewski v Nemzeti Adó—​ és Vámhivatal Dél-​ alföldi Regionális Vám—​és Pénzügyőri Főigazgatósága [2015]. 59 See Orhan Gürel, (n 55), para 32. 60 See SK (B), (n 55), para 36. 61 See Case C-​268/​99 Aldona Malgorzata Jany and others v Staatssecretaris van Justitie [2001] ECR I-​08615.

130  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES substantially referred to the arguments reflected in cited CJEU judgments. However, the reference to Google Spain in NBB suggested that the jurisprudence of the CJEU played a decisive role in the Court’s ruling. The cases issued by the Court of Cassation which cited CJEU judgments are mostly cases related to labour law, and only a small number of cases are about intellectual property. In one case, the judgment refers to Adidas; however, there is no proper citation to the case, so the exact title of the case is unknown.62 In 357 cases, the Court of Cassation makes a general reference to the jurisprudence of the CJEU without a citation to any specific case. In 293 judgments, the Court of Cassation cited a small number of cases. Having looked at those cases, it seems impossible to identify the conflicts or facts that triggered the reference to the CJEU. The cases are presented in Table 6.3: Table 6.3  List of cases cited by the Court of Cassation 1

Case C-​13/​95 Ayşe Süzen v Zehnacker Gebäudereinigung GmbH Krankenhausservice (11 March 1997)

2831

2

Case C-​24/​85 Jozef Maria Antonius Spijkers v Gebroeders Benedik Abattoir CV and Alfred Benedik en Zonen BV (18 March 1986)

2332

3

Joined cases C-​173/​96 and C-​247/​96 Francisca Sánchez Hidalgo v Asociación de Servicios Aser and Sociedad Cooperativa Minerva and Horst Ziemann v Ziemann Sicherheit GmbH and Horst Bohn Sicherheitsdienst (10 December1998)

1483

4

Joined cases C-​369/​96 and C-​376/​96 Jean-​Claude Arblade and Arblade & Fils SARL and Bernard Leloup, Serge Leloup and Sofrage SARL (23 November 1999)

74

5

Case C-​131/​12 Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD), Mario Costeja González (13 May 2014)

2

6

‘Adidas’ case

1

7

Case T-​305/​02 Nestlé Waters France v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (3 December 2003)

1

Source: Author’s own research from access to official and commercial databases. 1 All of these cases are related with labour and social rights and rendered by the same three chambers of the Court (seventh, nineth, and twenty-​second chambers) and Assembly of Civil Chambers. In two of these cases, the CJEU judgment is referred to twice. Taken together, the number of citations to this judgment is 285 in 283 cases. 2 ibid. 3 ibid. 4 All of these cases are rendered by the Assembly of Penal Chambers.

62 This case is presumably Case C-​425/​98 Marca Mode CV v Adidas AG and Adidas Benelux BV [2000] ECR I-​04861 or Case C-​408/​01 Adidas-​Salomon AG and Adidas Benelux BV v Fitnessworld Trading Ltd [2003] ECR I-​12537.

THE CJEU AND THE TURKISH LEGAL SYSTEM  131 With regard to the judgments of the Council of State, except for two cases, all the cases are in relation to competition law and deal with the same legal issues. The cited cases are presented in Table 6.4: Table 6.4  List of cases cited by the Council of State 1

Joined cases T-​202/​98, T-​204/​98, and T-​207/​98 Tate & Lyle plc, British Sugar plc and Napier Brown & Co Ltd v Commission of the European Communities (12 July 2001)

261

2

‘Polypropylene’ case

222

3

Case C-​8/​08 T-​Mobile Netherlands BV v Raad van bestuur van de Nederlandse Mededingingsautoriteit (4 June 2009)

223

4

Case C-​48/​69 Imperial Chemical Industries Ltd v Commission of the European Communities (14 July 1972)

104

5

Case C-​27/​76 United Brands Company and United Brands Continentaal BV v Commission of the European Communities (14 February 1978)

25

6

Case C-​96/​80 JP Jenkins v Kingsgate (Clothing Productions) Ltd (31 March 1981)

16

Source: Author’s own research from access to official and commercial databases. 1 All of these cases are related with competition law and except for one case, rendered also by the same chamber of the Court (thirteenth chamber). The remaining case was ruled on by the Plenary Session of Administrative Law Chambers. In six of these cases, the judgment is referred to twice. Taken together, the number of citations to this judgment is thirty-​two in twenty-​six cases. 2 All of these cases are related with competition law and rendered by the same chamber of the Court (thirteenth Chamber). 3 ibid. 4 See table n 1. 5 See table n 2. 6 Related with labour and social rights (equal pay).

In some of these cases, the judgments refer to the Polypropylene case; however, there is no proper citation to the case, so the exact title of the case is unknown.63 In three cases, the Council of State makes a general reference to the jurisprudence of the CJEU, but without a citation to any specific case. One of the remaining two cases is related to the smoking ban in cafes with a general reference to the jurisprudence of the CJEU, but without a citation of any specific case. The other case is related to equal pay, and cited Case C-​96/​80 JP Jenkins v Kingsgate (Clothing Productions) Ltd (31 March1981). 63 The Council of State might have referred to this group of cases, usually referred as ‘Polypropylene cases’: Case C-​49/​92P Commission of the European Communities v Anic Partecipazioni SpA [1999] ECR I-​04125; Case C-​199/​92P Hüls AG v Commission of the European Communities [1999] ECR I-​04287; Case C-​235/​92P Montecatini SpA v Commission of the European Communities [1999] ECR I-​04539.

132  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

E.  Analysis of Results The Turkish judiciary has been citing foreign or international law to some extent for years. However, this phenomenon is found mostly in human rights law. The basic reason for this situation is paradoxically the ongoing EU accession process. Throughout this process, political criteria and the rule of law have been always taken first place in Turkey’s relations with the EU.64 Under these circumstances, harmonizing the human rights framework with Council of Europe and EU standards has been in the forefront of work carried out. Even despite a reluctance to follow or cite the jurisprudence of the ECtHR or relevant international monitoring mechanisms, the judiciary occasionally—​and with regard to the Constitutional Court always—​ used them as a source of reasoning. The criteria for promotion of judges do not refer to compliance with international law or ruling in conformity with international standards.65 The findings below (Table 6.5) show that the influence of the CJEU is present only in certain fields of law, such as labour law, competition law, and intellectual property law. This is mainly based on the leading motives behind the relevant laws. One influence is the necessity of the EU accession process, which requires Turkey to harmonize its laws with the acquis. Looking at the existing information collected through the databases, it is possible to reach some conclusions. First, the cases that cite judgments of the CJEU are focused on mainly three fields of law: labour and social rights (637 cases), competition law (30 cases), and intellectual property (6 cases). Although a number of cases (eight) concern fundamental rights, having looked at the contexts of these cases and how they cite the CJEU, it is considered that it would be more appropriate to disregard them.66 Taking account of efforts mostly based on chapters related to these fields of law for harmonization of Turkish law with EU law in Turkey, this situation is not a surprise. For example, according to the EU Commission’s ‘Turkey 2018 Report’, Turkey was found to have a good level of preparation in intellectual property law. Moreover, adoption of the Industrial Property Law and the Draft Copyright Law will strengthen the approximation of EU law and Turkish law in this field.67 As regards competition law, the Commission stated in 2018 that, ‘[l]‌egislation

64 See Turkey 2018 Report (n 38). 65 See Decision no 675/​1 Resolution on Principles of Promotion of Judges and Prosecutors, Council of Judges and Prosecutors of 05 April 2017  accessed 1 May 2020. 66 Seven of these cases are ‘clone’ cases and all were rendered by the Assembly of Penal Chambers of the Court of Cassation. All of these cases are related with the principle of legality and foreseeability. The CJEU case cited in those judgments is quoted directly from academic writing and the Court of Cassation referred to the judgments of the ECtHR in the same sentence. Therefore, it seems that the Court was confused between the ECtHR and the CJEU. The remainder were rendered by the Council of State and relate to a smoking ban. 67 See Turkey 2018 Report, 68.

THE CJEU AND THE TURKISH LEGAL SYSTEM  133 Table 6.5  Citations of CJEU decisions in Turkey according to fields of law (2007–​17) Constitutional Court

Court of Cassation

Council of State

71

12

635

14

0

65

0

Competition law

0

0

30

Data and privacy protection

16

27

0

Other

18

0

0

Total

3

650

32

Fundamental rights

0

Labour and social rights

13

Intellectual property

Source: Author’s own research from access to official and commercial databases. 1 Court of Cassation, Assembly of Penal Chambers 2013/​14-​564 E, 2013/​445 K (12 November 2013); 2013/​478 E, 2014/​34 K (4 February 2014); 2013/​579 E, 2014/​68 K (11 February 2014); 2013/​575 E, 2014/​76 K (18 February 2014); 2012/​1514 E, 2014/​312 K (10 June 2014); 2012/​1510 E, 2014/​331 K (17 June 2014); 2013/​749 E, 2015/​277 K (15 September 2015). 2 Council of State, tenth chamber, 2009/​13450 E, 2010/​ . . . K (12 April 2010). There is a general reference to the decisions of the CJEU with regard to the principle of proportionality. 3 Constitutional Court, SK (B), (n 55). 4 Council of State, eleventh chamber, 2011/​3215 E, 2014/​775 K (4 December 2014). 5 Court of Cassation, Assembly of Civil Chambers 2010/​11-​695 E, 2011/​47 K (9 February 2011); eleventh Civil Chamber 2009/​3437 E, 2011/​2191 K (3 March 2011); 2013/​1138 E, 2014/​16 K (5 January 2014); 2013/​18633 E, 2014/​7622 K (17 April 2014); 2014/​17376 E, 2015/​8772 K (30 June 2015); 2016/​ 5678 E, 2017/​7446 K (20 December 2017). 6 Constitutional Court, NBB (n 55). 7 Court of Cassation, Assembly of Civil Chambers 2014/​4-​56 E, 2015/​1679 K (17 June 2015); nineteenth Penal Chamber 2016/​15510 E, 2017/​5325 K (5 June 2017). 8 Constitutional Court, Orhan Gürel, (n 55).

on antitrust is largely aligned with the acquis’.68 With respect to labour law, the Commission stated in 2016 that ‘Turkey remains moderately prepared in this chapter’.69 On the other hand, considering the limited content of the relevant databases, the findings should not be regarded as entirely demonstrating the exact situation in Turkey. However, the databases did in fact include many hundreds of thousands—​even millions—​of court decisions, which should presumably be enough to support the observations about the main fields of law where citations are found.



68 69

ibid 69. See Turkey 2016 Report, 58.

134  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Judgments of the courts referring to EU law may be summarized as strongly influenced by the CJEU, for example in labour law and competition law. However, in some cases, CJEU judgments are only mentioned in judgments, and do not directly affect the reasoning for the judgment. In some cases (361 in total), the Courts only make a general reference to the jurisprudence of the CJEU, without a citation to any specific case. This approach suggests that those references are mostly symbolic, rather than substantial. There are also cases where the courts directly refer to certain CJEU judgments. In these judgments, references are mostly substantive and may be regarded as in line with the approximation approach of the courts following the EU–​Turkey agreements. With regard to the Constitutional Court, since the case law of the ECtHR on ‘the right to be forgotten’ is to a certain degree immature and the decision of the CJEU is the first and still the foremost case in this context, it appears that the Google Spain case had a decisive influence on the Court’s ruling. While mentioning the concept of the ‘right to be forgotten’ for the first time and the importance of balancing the right to private life and freedom of expression in that sense, the Constitutional Court referred to Google Spain and the indispensability of the newly acknowledged right. With regard to the Council of State and the Court of Cassation, although there is some correlation between the jurisprudence of the CJEU and the final rulings of the national courts, albeit only partially, CJEU rulings did play a central role in leading the courts to their final rulings in many cases. The main reason behind the citation of some CJEU decisions in cases regarding labour law or competition law is that the Labour Code (No 4857) and the Law on Protection of Competition (No 4054) were mainly focused on harmonization of the Turkish legal framework with the acquis. According to an explanatory note in the Draft Labour Law, one of the main reasons for adopting a new labour code was harmonization of Turkish labour law with EU law.70 This motivation can also be traced in various provisions of the Labour Code as these mainly focus on approximation to the relevant EU directives in the employment field. It was said that the Labour Code took some significant EU directives on employment relations as a model in order to correspond to EC standards.71 As for the Law on Protection of Competition, Turkey also opted to follow the EU model with regard to competition law.72 Article 39 of Decision No 1/​95 of the EC-​Turkey Association Council

70 See report of the Health, Family, Labour and Social Affairs Commission of the Grand National Assembly of Turkey, 12 March 2003  accessed 1 May 2020. 71 See Aziz Can Tuncay, ‘Brief History and Flexibilisation Efforts of Turkish Labour Law’ (2013) 15(Special Issue) Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi 345. 72 See Kerem Cem Sanlı, ‘Avrupa Birliği Rekabet Politkası’ in Ayhan Kaya, Senem Aydın-​Düzgit, and Yaprak Gürsoy (eds), Avrupa Birliği’ne Giriş: Tarih, Kurumlar ve Politikalar (Istanbul Bilgi University Press 2013) 172; Uğur Özgöker, Avrupa Birliği Rekabet Hukuku ve Politikası (Beta 2009) 91–​93. For a detailed comparison of EU law and Law on Protection of Competition (No 4054), see Özgöker, ibid

THE CJEU AND THE TURKISH LEGAL SYSTEM  135 of 22 December 1995 on implementing the final phase of the Customs Union provided that: With a view to achieving the economic integration sought by the Customs Union, Turkey shall ensure that its legislation in the field of competition rules is made compatible with that of the European Community, and is applied effectively.73

Thus, the law was as a result of an obligation imposed by the stated decision,74 and it seems that relations with the EU and negotiation of accession to the Customs Union highly influenced adoption of the said law.75 The first regulations with regard to intellectual property were adopted with a series of decrees with force of law in 1995,76 which were repealed in 2016 by the Industrial Property Law (Law No 6769). Those decrees were obligations that stemmed from Decision No 1/​95 and are referred to as a milestone for intellectual property law in Turkey.77 In this context, the Law on Protection of Plant Breeders’ Rights for New Plant Varieties (Law No 5042), the Law on Protection of Integrated Circuit Topographies (Law No 5147), and the Industrial Property Law (Law No 6769) aimed at compliance with the acquis.78 As a result, citation of CJEU judgments by the Turkish judiciary in these fields seems to be connected to the international commitment of legal approximation towards the EU. It seems that CJEU judgments have had some influence on regulation or legislation in Turkey in some respects. Adoption of the ‘right to be forgotten’ occurred 91‒100; Gert Verhellen and Tunay Köksal, Avrupa Birliği’nin Rekabet Politikası ve Türkiye’nin Uyumu (İktisadi Kalkınma Vakfı 2002) 62–​68. 73 See Official Journal L035, 13 February 1996 0001–​47. 74 Yılmaz Aslan, Rekabet Hukuku (Ekin 2002) 32–​33. 75 Sanlı (n 72) 171. For detailed information concerning the obligations with respect to competition law, see Gamze Aşçıoğlu Öz, Avrupa Topluluğu ve Türk Rekabet Hukukunda Hakim Durumun Kötüye Kullanılması (Rekabet Kurumu 2002) 191–​97. 76 Those decrees in force of law were as follows: Decree in Force of Law Regarding Protection of Patent Rights (no 551), 27 June 1995; Decree in Force of Law Regarding Protection of Industrial Designs (no 554), 8 June 1995; Decree in Force of Law Regarding Protection of Geographical Signs (no 555), 27 June 1995; Decree in Force of Law Regarding Protection of Trademarks (no 556), 8 June 1995. 77 Sami Karahan, Cahit Suluk, and Tahir Saraç, Temel Nal, Fikri Mülkiyet Hukukunun Esasları (Seçkin 2013) 24; Hakan Karan, Mehmet Kılıç, Markaların Korunması 556 Sayılı KHK Şerhi ve İlgili Mevzuat (Turhan 2004) 2. 78 See ‘Report of the Agriculture, Forest and Rural Affairs Commission of the Grand National Assembly of Turkey on the Draft Law on Protection of Plant Breeders’ Rights for New Plant Varieties’ (17 December 2003) accessed 1 May 2020; ‘Report of the Industry, Trade, Energy, Natural Resources, Information and Technology Commission of the Grand National Assembly of Turkey on the Draft Law on Protection of Integrated Circuit Topographies’ (15 April 2004) accessed 1 May 2020; ‘Report of the Industry, Trade, Energy, Natural Resources, Information and Technology Commission of the Grand National Assembly of Turkey on the Draft Industrial Property Law’ (11 May 2016) accessed 1 May 2020.

136  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES by a judgment of the Turkish Constitutional Court, so it would not be wrong to say that the said right was a judge-​made norm influenced by the Google Spain judgment of the CJEU and other relevant ECtHR judgments. Another example of CJEU influence on Turkish law is the Bosman decision. This surely influenced Turkish competitive sport regulations in terms of the right to use foreign players in sports. Since Turkey’s relevant sports authorities have been a part of regional (Union of European Football Associations (UEFA), Fédération International de Basketball Association (FIBA)-​Europe) and global sport associations (Fédération International de Football Association (FIFA), FIBA) the rules applied in this area have to be fully compatible with international standards, which are also shaped by CJEU decisions, and it would not be an exaggeration to say that Turkey is fully in compliance with those standards. The main interactions between judges in Turkey and judges of other national or international judicial bodies are mostly limited to the ECtHR. Since the early 2000s, hundreds of judges and prosecutors have visited the ECtHR and other international bodies and conducted joint conferences or meetings. However, relations with EU institutions are few, and mostly on an individual basis. Thus, it would be an exaggeration to say that there has been a judicial dialogue between the CJEU and the Turkish judiciary. The main underlying reason for a lack of relations between the two may well be the non-​binding nature of the rules of EU law in Turkish law. According to Article 90 of the Constitution, ‘international conventions duly put into effect have the force of law’. In the case of conflict between international conventions duly ratified by Turkey and domestic laws, only conventions concerning fundamental rights and freedoms prevail over these laws. However, when it comes to a conflict between domestic laws and conventions in fields other than human rights, conventions do not take precedence over national laws. Therefore, the non-​obligatory status of EU law in the Turkish legal system leads to reluctance among Turkish judges as to any interaction between the two legal systems. One may assert that there may a correlation between the ups and downs in relations with the EU, so that when relations are good there are more citations and more impacts of the CJEU, but when they are bad there are fewer citations and less impact. However, the limited sources available for this research preclude such a conclusion. Yet, considering the fields of law where citations were identified, it could not be found that the regression of EU–​Turkey relations affected the number of CJEU citations or their impact. Another reason for the fact that more CJEU citations cannot be found in Turkish judgments may be the lack of foreign language knowledge among judges and prosecutors in Turkey. The only official statistics provided by the Council of Judges and Prosecutors relate to the total number of judges and prosecutors and to their gender distribution. Research conducted in 2007 found that only 27 per cent of them can speak a foreign language, but it does not mention the level of

THE CJEU AND THE TURKISH LEGAL SYSTEM  137 knowledge.79 In comparison with Eurostat statistics of 2011, which reveal that knowledge of one foreign language in Turkey was 18 per cent,80 the figure of 27 per cent is not too surprising. Although there are no reliable data as regards the number of judges or prosecutors who can read or understand one of the official languages of the EU, the foregoing research suggests that the number is not high.81 Under these circumstances, most members of the judiciary are incapable of reading or citing foreign legal academic writings or jurisprudence that could also be a source to learn about relevant foreign or international law. A further reason may be the lack of translation of CJEU judgments into Turkish. The Ministries of Justice and Foreign Affairs have been translating ECtHR judgments for more than a decade; however, the same effort is not made in relation to CJEU judgments. Thus, Turkish translation of any CJEU judgment is not available for those interested in gaining access. On the other hand, Turkish translations of more than 3,300 ECtHR judgments are easily accessible through the HUDOC database of the said Court.82 Although it was stated in the Justice Reform Strategy in 201583 (and reiterated in 2019)84 that judgments of the CJEU would be translated into Turkish in order to increase awareness of EU law among the members of the judiciary, since then no activity has been carried out in that sense and this objective has not been implemented. Another reason for the relatively low rate of CJEU citation may be the curriculum of studies in law faculties in Turkey. According to traditional law education in Turkey, EU law is generally not on the list of core courses offered by law faculties. This preference makes EU law one of the least known fields of law among Turkish lawyers. Having looked at the curricula of some of the leading law faculties in Turkey, it can be seen that in state universities which admit the majority of law students, EU law is offered mostly as an elective course.85 Besides that, six masters

79 See Mithat Sancar and Eylem Atılgan, Adalet Biraz Es Geçiliyor . . . (TESEV 2009) 13 accessed 1 May 2020. 80 See Eurostat, ‘Population Aged 25–​64 Reporting They Knew One or More Foreign Languages’ (2016) accessed 1 May  2020. 81 According to the short biographies provided by the official website of the Constitutional Court, only seven judges have a knowledge of foreign languages. See accessed 1 May 2020. 82 See accessed 1 May 2020. 83 Ministry of Justice, ‘Judicial Reform Strategy 2015’, 71 accessed 1 May 2020. 84 Ministry of Justice, ‘Judicial Reform Strategy 2019’, 57 accessed 1 May  2020. 85 See eg Galatasaray University Faculty of Law accessed 1 May2020; Yeditepe University Faculty of Law accessed 1 May 2020; Bahçeşehir University Faculty of Law accessed 1 May 2020 (provides EU law as a mandatory course for law undergraduates); Istanbul Bilgi University Faculty of Law accessed 1 May 2020; Bilkent University Faculty of Law accessed 1 May 2020; MEF University Faculty of Law accessed 1 May 2020; Istanbul University Faculty of Law accessed 1 May 2020; Koç University Faculty of Law accessed 1 May 2020; Marmara University Faculty of Law accessed 1 May 2020; Ankara University Faculty of Law accessed 1 May 2020; Istanbul Şehir University Faculty of Law accessed 1 May 2020; Istanbul Kültür University Faculty of Law accessed 1 May 2020; Selçuk University Faculty of Law accessed 1 May 2020 (provides elective EU law courses). 86 See Ankara Hacı Bayram Veli University accessed 1 May 2020; Galatasaray University accessed 1 May 2020; Dokuz Eylül University accessed 1 May 2020; Marmara University accessed 1 May 2020; Selçuk University accessed 1 May 2020. 87 See accessed 1 May 2020. 88 Suavi Aydın and others, Fikri Mülkiyet Hukukunun Esasları (Seçkin 2013) 24; Hakan Karan, Just Expectations, A Compilation of TESEV Research Studies on the Judiciary in Turkey (TESEV 2011) 30 et seq. 89 According to a survey conducted by the Economic Development Foundation in 2017, support for Turkey’s EU membership in Turkish public opinion is 78.9 per cent. For the full text of the report, see Economic Development Foundation, ‘Perception of Europe and Support for EU Membership in Turkish Public Opinion’ (2017) accessed 1 May  2020. 90 Aydin and others (n 88) 39.

THE CJEU AND THE TURKISH LEGAL SYSTEM  139 every chamber of the higher courts, including the Turkish Constitutional Court, which can do comparative research work for the court members. The problem is that the workload of those rapporteur judges is as high as for the court members, which makes it hard for them to conduct any research when preparing draft judgments. The foreign language knowledge or proficiency in EU law of those rapporteur judges is also low, and they cannot provide any input to the court members in that regard.

7

The Impact of the Court of Justice of the European Union on the Russian Legal System Paul Kalinichenko*

A.  Introduction This chapter presents the findings of the author on the impact of the Court of Justice of the European Union (CJEU) on the Russian legal system. Russian courts have applied the EU–​Russia bilateral agreements and referred to EU law in their practice for more than twenty years. The first links to CJEU case law in Russian court decisions date back to 2006. This means that the Russian judiciary has only been referring to CJEU practice for the past thirteen years. Arguably, thirteen years is not long enough to assess a national legal order and judicial developments. Moreover, it is well known that EU–​Russia relations have been going through a difficult period since 2014 and have been stagnant due to the Ukrainian crisis in 2014. At the present time, the level of relations is showing a stable decrease. Mutual sanctions, a minimum of political contacts, and cooperation on the basis of ‘selective engagement’ are at the top of the agenda between the parties. As a result, I decided to regroup the methodological approach for this research and present separate results for the periods before and after 2014. Consequently, section B includes a brief description of the background to the modern Russian legal system and, in particular, of the structure of the Russian judiciary. Section C briefly describes the Russian model for approximating its legal order with EU rules and standards, as well as some remarks on the application of EU law by the Russian courts. In section D, I explain the specifics of the database used and proceed to describe and analyse the citation of CJEU decisions by * This chapter is based on results obtained within the framework of the state assignment of the Ministry of Education and Science of Russia 29.6607.2017/​8.9 (‘Science of the Future’, Kutafin Moscow State Law University); the topic ‘Legal Aspects of the Development of Relations between Russia and the European Union in the Context of Russia’s Priorities for Participation in Global and Regional Integration taking into Account the Current International Situation’. The text is prepared with the support of the Erasmus+ programme of the European Union, Jean Monnet Chair, project no 575077-​ EPP-​ 1-​ 2016-​ 1-​ RU-​ EPPJMO-​ CHAIR and Jean Monnet Module, project no 587634-​EPP-​1-​2017-​1-​RU-​EPPJMO-​MODULE. Paul Kalinichenko, The Impact of the Court of Justice of the European Union on the Russian Legal System In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0007.

144  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Russian courts in the period 2006–​20. The tables and graphs presenting the findings of the research appear here. Finally, in section E, I present analysis of results and conclusions.

B.  Russia’s Legal System and Judiciary The Russian legal order belongs to the continental legal tradition and is characterized by distinct and separate branches of public and private law. In particular, Russian criminal procedural law and Russian civil procedural law are two different branches of public law. The 1993 Constitution of the Russian Federation ratified Russia’s international treaties and federal laws, including codified laws (codes), which form the main sources of law in the Russian legal order. Although there is no rule of precedent in the Russian legal order, resolutions (explanatory notes) of higher Russian courts1 are extremely important for comprehending the legal force of a particular international agreement, as well as domestic legislation within the Russian legal system. These resolutions constitute a source of primary and secondary Russian law interpretation for lower courts, which are obliged to follow these resolutions. Another important fact to stress is that the Russian legal order is still influenced by Soviet law. Unlike the Bolshevik regime, which extinguished the Law of the Russian Empire after the Revolution of 1917, the modern Russian legal order does not abrogate, but limits the application of Soviet law provisions. Thus, Soviet law can still be applicable to the extent that it does not contradict the Constitution of the Russian Federation.2 The political and legal origin of sovereignty in Russia comes from the Declaration on State Sovereignty of the Russian Soviet Federative Socialist Republic (RSFSR) of 12 July 19903 that proclaimed the superiority of it and its legislation over the legislation of the USSR. The sovereignty of Russia covers its entire territory and the state ensures the integrity and inviolability of its territory. The fundamentals of the modern Russian legal order originate from the 1993 Constitution of the Russian Federation (‘The Russian Constitution’), which was adopted by a nationwide vote (referendum) on 12 December 1993 as the main law of Russia, based on best constitutional standards and internationally recognized democratic and human rights values. The Russian Constitution came about as a

1 The higher level of the Russian judicial system consists of the Constitutional Court and the Supreme Court. 2 In accordance with the 1993 Constitution of the Russian Federation, Second Section, para 2. 3 Declaration on the State Sovereignty of the Russian Soviet Federative Socialists Republic on 12 July 1990, Vedomosti Syezda narodnikh deputatov RSFSR I Verkhovnogo Sovieta RSFSR (‘Bulletin of the Congress of People’s Deputies and of the Supreme Council the Russian Soviet Federative Socialists Republic’) of 14 July 1990, N 2, Art 22.

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  145 result of radical changes in Russian society, which started in the era of Soviet perestroika. The Russian Constitution was influenced by West-​European constitutional traditions, and therefore reflects Western approaches to the foundations of state power, protection of human rights, and basic principles of economics and law. Undoubtedly, this document laid a firm foundation stone for the Europeanization of contemporary Russian law.4 The Russian Constitution consists of a preamble, two sections, nine chapters, and 137 articles. It covers provisions on the fundamentals of the constitutional system,5 human rights,6 the federal structure,7 the fundamentals of the functioning of high-​level bodies of state power and local self-​government,8 constitutional amendments, and review provisions.9 The Constitution declares Russia to be a democratic, federal, law-​bound ‘State’ with a republican form of government.10 It must be emphasized that the human being, their rights, and freedoms are the supreme value in Russia.11 Russia is a social state,12 where all forms of ownership are recognized and protected.13 Separation of powers,14 ideological diversity,15 and the rule of law16 are guaranteed under the 1993 Constitution. The constitutional order of Russia is characterized by three features. First of all, some provisions of the Russian Constitution are immune from further amendments. These provisions are those on the fundamentals of the constitutional system and on human rights under constitutional review. A  new constitution must be adopted if these provisions are amended. Second, the Constitution integrates international legal acts into its national legal order and recognizes the priority of duly ratified international agreements over conflicting domestic laws.17 Third, only the Constitutional Court can interpret the Constitution. Its legal rulings are binding18 and are considered as a source of law within the Russian legal system.19 4 In fact, the time of adoption of the Russian Constitution practically coincided with the entry into force of the Treaty on European Union (TEU) on 1 November 1993. 5 Russian Constitution, Chapter 1. 6 ibid Ch 2. 7 ibid Ch 3. 8 ibid Chs 4‒8. 9 ibid Ch 9. 10 ibid Art 1. 11 ibid Art 2. 12 ibid Art 7. 13 ibid Art 8. 14 ibid Art 10. 15 ibid Art 13. 16 ibid Art 15. 17 ibid Art 15(4). 18 Article 2 Federal Constitutional Law no 1-​FKZ of 21 July 1994 ‘On the Constitutional Court of the Russian Federation’, SZ RF, 1994, no 13, Art 1447: ‘Decisions of the Constitutional Court of the Russian Federation shall be obligatory throughout the territory of the Russian Federation for all representative, executive, and judicial bodies of State Power, bodies of local government, enterprises, agencies, organizations, officials, citizens and their associations.’ 19 Valerie Zorkin, ‘Precedent Character of the Decisions of the Constitutional Court of the Russian Federation’ (2004) 12 J Russ Law 3‒9 (in Russian).

146  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES It is worth noting that the Russian Constitution is strongly influenced by the Federal Treaty of 1992. This document was based on a populist slogan of Boris Yeltsin: ‘You may take as much sovereignty as you can swallow.’20 Consequently, the Constitution identifies the subjects of the Russian Federation as ‘States’.21 Nevertheless, in 2002 the Constitutional Court unequivocally rejected all claims of sovereignty for the subjects of the Russian Federation.22 Notwithstanding the ongoing academic debate on the Russian approach to sharing European common values,23 it must be acknowledged that the Russian Constitution laid the basis for a principally new Western-​style legal system in post-​Soviet Russia. The major breakthrough of the 1993 Constitution is a decisive departure from the Soviet legal heritage, in particular with regard to the implementation and application of international law within the national legal order.24 It is worth noting that at the time of its adoption, the Russian Constitution had the most liberal provisions regarding application of international law within a national legal system among all the former Soviet countries. Consequently, the constitutional provisions on application of international law gave greater opportunities for Russian judges to apply and interpret international law in accordance with their constitutional acts than for any other judges from the former USSR. The core of ‘classic’ Soviet legal doctrine was to preserve the concept of ‘sovereignty’ in order to protect the country’s own system of socialistic government and the supremacy of Soviet law, and in particular the supremacy of the fundamental principles of socialist state order (nationalization of property without compensation, wars against colonialism, no protection of private property). Even during perestroika, the formal theory of international law in the USSR stated that no international treaty could automatically take precedent over conflicting provisions of Soviet domestic law. International agreements were supposed to be considered as self-​executing if their provisions either fully corresponded to existing national laws or regulated gaps in national legislation. International human rights conventions were deprived of supremacy over national law due to their ‘vagueness and generality’, and therefore were not directly applicable. It should be emphasized that as a matter of principle ‘classic’ Soviet legal doctrine did not recognize the primacy of international law over national law.25 20 See Boris Yeltsin’s speech in Kazan 6 August 1990  accessed 1 May  2020. 21 Russian Constitution, Art 5(2). 22 Order of the Constitutional Court of the Russian Federation no 92-​O of 27 June 2000, SZ RF, 17 July 2000, no 29, Art 311; Judgment of the Constitutional Court of the Russian Federation no 10_​P of 7 June 2000, SZ RF, 19 June 2000, no 25, Art 2728. 23 See Päivi Leino-​ Sandberg and Roman Petrov, ‘Between ‘Common Values’ and Competing Universals—​the Promotion of the EU’s Common Values though the European Neighbourhood Policy’ (2009) 5(15) Eur Law J 669‒70. 24 See Gennady M Danilenko, ‘Implementation of International Law in the CIS States: Theory and Practice’ (1999) 10 EJIL 51‒69. 25 John N Hazard, ‘Soviet Yearbook of International Law 1987’ (1990) 84(1) AJIL 303‒05. See also Ferdinand Joseph Maria Feldbrugge, Encyclopedia of Soviet Law (Oceana Publications 1973). The official

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  147 The modern Russian judicial system is based on constitutional provisions and those of the federal constitutional law ‘On the Judicial System of the Russian Federation’.26 In accordance with these provisions, the Russian judicial system has a complex structural hierarchy. This in turn depends on the federal form of government, and specifically on Russia’s subdivisions of different types and levels. The judicial system of Russia consists of federal and regional courts. The Constitutional Court and the Supreme Court comprise the higher level of the federal courts.27 The Constitutional Court rules on cases concerning conformity with the Constitution, and judicial disputes between federal and regional bodies. It interprets the Russian Constitution. In addition to judgments, Constitutional Court judges are empowered to issue dissenting opinions, which lack binding effect. The Russian Supreme Court considers the most important cases for the legal order as a court of first instance and sits as the highest instance for the three subsystems of federal courts: • federal courts of general jurisdiction; • arbitration (commercial) courts,28 including the Court of Intellectual Property Rights; • military courts. The federal courts of general jurisdiction consist of two levels: Regional Courts (courts at the level of federal subjects—​Republic, Kray, Oblast, Federal City, Autonomous Oblast, Autonomous Okrug) and courts of regional subdivisions (town, district, and inter-​district courts). These courts consider criminal, civil, administrative, civil, and other categories of cases under their jurisdiction. Arbitration courts cover three levels of federal court:  Arbitration District Courts (ten), Arbitration Appellate Courts (twenty-​one) and Arbitration Courts at the level of federal subjects (eighty-​five). Arbitration courts consider disputes in the economic field. The Russian system of arbitration courts also includes a special court on intellectual property rights which resides in Moscow.

Soviet doctrine of the application of international law explicitly stated that the Soviet Constitution of 1977 ‘possessed prior legal power upon the territory of the country and had priority over the international obligations of the country’, in Natalia Blatova (ed), Mezhdunarodnoe Publichnoe Pravo (Nauka 1987) 64. 26 Federal Constitutional Law no 1-​FKZ of 31 December 1996 ‘On the Judicial System of the Russian Federation’, SZ RF, 1997, no 1, Art 1. 27 Before 2014, arbitration courts were a separate branch of judicial power headed by the Higher Arbitration Court. After the merger, the jurisdiction of the Higher Arbitration Court was transferred to the Russian Supreme Court. 28 The term ‘arbitration courts’ is a historical feature of the Russian judicial system. It comes from the term ‘state arbitrazh’ (‘special courts for economic disputes’) in the Soviet era. In addition, the term ‘commercial’ in Russian may mean ‘private’ or ‘non-​state’, or ‘on a paid basis’, for example, ‘commercial shop’ (a small private store) or ‘commercial real estate’ (rented flat).

148  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The system of Russian military courts is constructed in accordance with military subdivisions. This involves two levels of federal courts: military district courts and garrison courts. Military courts rule on criminal cases involving military personnel. Courts of the federal subjects include Constitutional (Statutory) Courts of Regions (Subjects of the Russian Federation) and justice of the peace courts. Constitutional (Statutory) Courts of Regions apply and interpret the Constitutions of republics and statutes of other subjects of the Federation accordingly. justice of the peace courts, which represent the lowest level of Russian courts of general jurisdictions, consider small criminal, civil, and administrative cases. Russian courts consider a significant number of cases. Only in 2018, some 33,000 Russian judges passed judgments on some 31  million different cases.29 This means that every Russian judge reviews more than 900 cases every year. The number of cases is growing annually.30 According to the Constitution, the Russian president appoints federal judges, except for judges of the Supreme and Constitutional Courts, who are appointed by the Federation Council on the president’s proposal. Several conditions are required to obtain the status of a judge. These include, for example, meeting a higher legal education requirement and passing a qualifying exam. Judges should know about the specifics of applying international law in the Russian legal order, but they are not obliged to understand EU law. There are also no special rules requiring judges to speak foreign languages. At the same time, higher legal education in Russia includes the study of European law (including EU law) and a foreign language (as a rule, English). The use of CJEU case law in Russian court judgments is an initiative of individual judges who have knowledge of EU law and can read CJEU judgments in a foreign language. Usually, they access CJEU decisions through the internet via the EU official website. In very rare cases, the Russian courts ask Russian scholars to deliver their expert legal opinion on EU law matters within the framework of the proceedings. At the same time, the Russian courts do not consider any legal doctrine as a source of law and normally do not cite it in their decisions. Adoption of the new Constitution of the Russian Federation in 1993 afforded the Russian courts a substantially broader opportunity to apply international law and its universal principles. In accordance with the Russian Constitution: Universally recognized principles and norms of international law as well as international agreements of the Russian Federation shall be an integral part of its legal system. If an international agreement of the Russian Federation establishes

29 Maksim Varaksin, The Supreme Court summed up the results of the courts for 2018:  accessed 1 May 2020. 30 According to official statistics of the Supreme Court Judicial Department:  accessed 1 May  2020.

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  149 rules which differ from those stipulated by law, then the rules of the international agreement shall be applied.31

These provisions go further than the 1992 Amendments to the Soviet Constitution, which only established the supremacy of internationally recognized human rights over domestic legislation. Moreover, compared with similar constitutional provisions of other former Soviet countries, it is a stringent rule concerning the primacy of international law in the national constitution within the post-​Soviet area.32 The provisions of ratified international agreements prevail under the rules of Russian domestic legislation. In 1997, the Constitutional Court interpreted in this context that ‘law’ means laws and all other rules33—​but not the Constitution. On the one hand, the Constitutional Court ruled that ‘international treaties of the Russian Federation that do not correspond to the Constitution of the Russian Federation shall not be implemented or used’.34 On the other hand, if an international treaty contradicts the Russian Constitution, then the Russian side cannot sign it without necessary amendments to the Constitution.35 Moreover, the range of international agreements possessing primacy over Russian legislation is limited by the requirement of ratification. International treaties of the Russian Federation form a ‘part of its legal system’, so it is impossible to interpret this rule in the light of the lex posteriori derogat legi priori principle in the case of contradiction between the provisions of international treaties and future domestic acts. The Supreme Court of the Russian Federation has clarified that national courts should not apply national legal provisions that differ from the provisions contained in ratified international agreements.36 It is important to emphasize that the Constitution offered greater opportunities for Russian judges to apply and interpret various sources of international law in their judgments. As commentators acknowledge, ‘international law is no longer “alien” for [Russian] courts. They widely refer to it and apply it as well as domestic norms.’37

31 Article 15(4). 32 Maksim Karliuk, ‘The Russian Legal Order and the Legal Order of the Eurasian Economic Union: An Uneasy Relationship’ (2017) 5(2) RLJ 38‒39. 33 ‘Order of the Constitutional Court of the Russian Federation no 87-​O of 3 July 1997’ (1997) 5 Bull Const Court Russ Fed 3. 34 Constitution of the Russian Federation, Art 125(6). 35 Article 22 Federal Constitutional Law no 101-​FZ of 15 July 1995 ‘On International Treaties of Russian Federation’, SZ RF, 1995, no 29, Art 2757. 36 See ‘Resolution of the Supreme Court of the Russian Federation of 10 October 2003  “On Application by Courts of General Jurisdiction of the Commonly Recognized Principles and Norms of the International Law and the International Treaties of the Russian Federation’ (1997) 12 Bull Const Court Russ Fed 3–8. 37 Roman Petrov and Paul Kalinichenko, ‘The Europeanization of Third Country Judiciaries through the Application of the EU Acquis: The Cases of Russia and Ukraine’ (2011) 60 ICLQ 337‒39.

150  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Resolutions of the Plenum of the Supreme Court of Russia (the highest body of the Supreme Court, which is authorized to issue unified interpretation of Federal laws and their application by lower national courts)38 specify precise criteria which Russian courts of general jurisdiction are expected to follow in relation to various sources of international law. In particular, these resolutions clarify that the Russian judiciary can apply international agreements that meet the following cumulative requirements: (i) Russia is a party; (ii) the agreement has been duly ratified by the Russian Parliament; (iii) the agreement has been published in an official periodical in Russia; (iv) the agreement is self-​executory by its nature. Therefore, it can be said that international law is widely referred to and cited by national judges.39 Interpretation and application of the European Convention on Human Rights (ECHR) is of particular significance for the Russian judiciary.40 This is also relevant for application of the EU–​Russia Partnership and Cooperation Agreement (PCA) of 199741 and other bilateral agreements between the EU and Russia.42 However, application of international law by the Russian judiciary is not completely smooth. In some cases, Russian judges openly ignore—​or even reject application of—​international law in their judgments. Moreover, Russian courts are often guided in their decisions by the judgments of other courts, in particular those of the higher Russian courts and the courts of Moscow Districts and the City of Moscow.43

38 For instance, ‘Resolution of the Supreme Court of the Russian Federation of 10 October 2003’ (n 36); Resolution no 8 of 11 June 1999 ‘On implementation of the international agreements of the Russian Federation referred to the questions of the arbitration procedures’, Vestnik Vysshego Arbitrazhnogo Suda Rossiyskoy Federatsii (‘Herald of the Supreme Arbitration Court of the Russian Federation’) no 6, 1999. 39 Serge Marochkin, ‘International Law in the Courts of the Russian Federation:  Practice of Application’ 2007 2 Chin J Int 333. 40 Based on Russian Constitution, Art 15(4), as well as Arts 17 and 18 providing for direct application of international instruments for the protection of human rights, Russia is making steady progress in the process of effective implementation of the ECHR and other acts of the Council of Europe. It is now customary practice for Russian courts to refer to provisions of the ECHR and the case law of the European Court of Human Rights (ECtHR) in their own judgments. See Yekaterina Alisievich, ‘Russian Court Practice of Applying Legal Views of the European Court of Human Rights’ in Kaj Hober (ed), The Uppsala Yearbook of East European Law 2006 (Wildy, Simmonds & Hill 81‒83). 41 Agreement of 28 November 1997 on partnership and cooperation establishing a partnership between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part [1997] OJ L327 (EU–​Russian PCA), 1. 42 Alfred E Kellermann, ‘The Impact of EU Enlargement on the Russian Federation’ 2005 2(1) Azerbaijani-​Russian Journal of International and Comparative Law 172. 43 Paul Kalinichenko, ‘The Constitutional Order of the Russian Federation and Its Adaptability to European and Eurasian Integration Projects’ in Peter Van Elsuwege and Roman Petrov (eds), Post-​Soviet Constitutions and Challenges of Regional Integration: Adapting to European and Eurasian Integration Projects (Routledge 2018) 170‒72.

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  151

C.  Approximation of Russian Law with EU Rules and Standards The years of the EU–​Russia strategic partnership had different positive results, especially in creating a comprehensive legal basis between the parties. Modern EU–​ Russia relationships are essentially based on three legal layers. The first layer is the EU–​Russia PCA of 1997 and other EU–​Russia bilateral agreements.44 The second layer consists of different memorandums of understanding and other arrangements, which are to be considered as soft law instruments. The third layer covers Russian legislation and the EU acquis within EU–​Russia sectoral cooperation. Unfortunately, the EU–​Russia legal background is significantly depleted at the present time. Russia’s WTO accession in 2012 implies that many provisions of the EU–​Russia PCA have become outdated.45 In order to adapt to this new legal context, the EU and Russia concluded several sectoral trade agreements in 2011,46 but their effective implementation may face difficulties due to the lack of a new EU–​ Russia framework agreement.47 Since the Ukrainian crisis in 2014, EU–​Russia relations have deteriorated. The European Parliament in its Resolution of 10 June 2015 stressed that the EU cannot envisage a return to ‘business as usual’ and had no choice but to conduct a critical reassessment of its relations with Russia. It highlighted that due to Russian actions in Crimea and in Eastern Ukraine, Russia can no longer be treated or considered as a ‘strategic partner’.48 A new period of ‘frozen’ partnership has started between the parties, moving such amendments as mutual sanctions, minimum political contact, and ‘selective engagement’ cooperation to the top of the agenda. The EU–​Russia PCA remains the main legal basis for the approximation of Russian legislation in line with EU law. The ‘approximation clause’49 and other provisions of the EU–​Russia PCA identified eighteen crucial areas of legislative 44 Between 1997 and 2014, Russia and the EU concluded more than ten sectoral bilateral agreements in the areas of trade, environment, security, migration, police cooperation, research, and technological development. Most of them remain in force. 45 Peter Van Elsuwege, ‘Towards a Modernisation of EU–​Russia Legal Relations?’ (June 2012) 5 CEURUS EU–​Russia Papers 2. 46 ‘EU and Russia Sign Bilateral Agreements Ahead of Russia’s WTO Accession Ceremony’ (16 December 2011) accessed 1 May 2020. 47 Such agreements are not provided within the scope of the PCA. However, eg the EU–​Russia Agreement on trade in services 2011 refers to the PCA provisions on trade in services agreed earlier than the GATS. See Agreement of 29 February 2012 in the form of an Exchange of Letters between the European Union and the Government of the Russian Federation relating to the preservation of commitments on trade in services contained in the current EU–​Russia Partnership and Cooperation Agreement [2012] OJ L57, 44–​51. 48 European Parliament resolution of 10 June 2015 on the state of EU–​Russia relations (2015/​2001/​ INI), point 2. 49 EU–​Russian PCA, Art 55. However, this PCA article contains only a ‘best endeavours’ clause. According to this, Russia should, ‘endeavour to ensure that its legislation will be gradually made compatible with that of the Community’.

152  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES approximation of Russian legislation with EU law. These priority areas were further extended by the roadmap for the EU–​Russia Common Economic Space of 2005 and the ‘Partnership for Modernization’ initiative of 2010, which introduced the idea of ‘regulatory convergence’ between the parties as a soft version of legislative approximation in the most politically sensitive fields of interaction, in particular in the energy sector. In addition, one has to emphasize the existence of constitutional and legal obstacles for effective legislative approximation in Russia. In particular, some areas of legislative approximation provided for in the EU–​Russia PCA are under the joint jurisdiction of Russian federal and local authorities (for instance, environmental protection). Another problem is the absence of a special programme of legislative approximation in Russia due to the ‘pragmatic approach’50 of the Russian government to the approximation process. As a rule, drafts of Russian laws contain no specific references or explanations regarding approximation with EU rules. In the best cases, explanatory notes to the drafts contain only general references to ‘international and European experience’. Consequently, to find any evidence of legislative approximation in Russia in most cases requires deep comparative analysis between the texts of a Russian law and an EU legal act. Moreover, legislative approximation in Russia embraces rules and standards developed by various international organizations. This concerns approximation of Russian legislation with the rules of the World Trade Organization (WTO), which Russia joined in 2012, as well as the traditional influence on the domestic legal system of the International Maritime Organization (IMO), the International Civil Aviation Organization (ICAO), and the International Labour Organization (ILO) rules. Last but not least is the impact of Russia’s regional integration efforts. In 2010, Russia, Belarus, and Kazakhstan established a Customs Union, with common customs rules and supranational institutions. Consequently, Russia has transferred its competence in the field of technical regulation and customs matters to the supranational Eurasian Economic Commission, which is modelled on the EU.51 Indeed, the structure and competence of the Eurasian Economic Commission and the Eurasian Court (the Eurasian Economic Community Court/​the Eurasian Economic Union Court) resemble the European Commission and the CJEU. Moreover, following the Declaration on Eurasian Economic Integration of 2011, the EU is the most desirable partner for cooperation in different fields.52 In this 50 Paul Kalinichenko, ‘Legislative Approximation and Application of EU Law in Russia’ in Peter Van Elsuwege and Roman Petrov (eds), Legislative Approximation and Application of EU Law in the Eastern Neighbourhood of the European Union: Towards a Common Regulatory Space? (Routledge 2014) 251. 51 See ‘Eurasian Integration is a Contribution to Forming the New Global Economy’ (5 June 2013) Interview with Tatiana Valovaya, Minister of the Eurasian Economic Commission ITAR-​TASS accessed 2 May 2020. See also Chapter 4 by Maxim Karliuk on the EAEU in this volume. 52 Draft Treaty of the Eurasian Economic Union of 3 September 2012  accessed 2 May 2020.

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  153 context, the Treaty on Eurasian Economic Union (EAEU) signed in Astana on 28 May 2014 has created new expectations and new challenges for the post-​Soviet area. The process of legislative approximation of Russian law with EU law has gone beyond the scope of the approximation clause in the EU–​Russia PCA. This process was exercised in line with priority areas of legal reform in Russia and thereby reflected the pragmatic approach of the Russian government towards modernization of the Russian legal system.53 Two approaches to the legislative approximation of Russian legislation with EU law can be highlighted. The first approach is adoption of legal transplants originating from EU Member States and involves the national law of certain EU Member States. The second approach is adoption of the EU acquis in line with the priority areas of the approximation clause in the EU–​Russia PCA.54 This refers to EU (supranational) law as such. With regard to the first approach, it can be said that in the course of the past fifteen to twenty years, the Russian legal system has been significantly influenced by the legal systems of some EU Member States. This influence materialized through Russia’s acceptance of legal transplants originating from certain EU Member States. As a consequence, Russian company law,55 competition law,56 financial services law, and also legislation on health and safety at work, have been gradually aligned with EU standards and rules. The most significant application of this approach has taken place in the area of civil law. The 1996 Russian Civil Code was modelled on the civil law traditions of West European countries, particularly on the Dutch Civil Code of 1992. In 2008, the President of Russia issued a Decree ‘On Improvement of the Civil Code of the Russian Federation’,57 which explicitly provided for ‘approximation of the provisions of the Civil Code to the rules regulating relations in the relevant EU law’ and an ‘upgrade on the ground of the positive experience of the civil codes of several European countries’. This approach of encouraging adoption

53 After entry into force of the PCA, the Russian government developed a long-​term plan to implement the PCA. The plan contains a description of measures to implement the provisions of the PCA, the responsible government agencies, and the durations. Most of the activities in the plan were to be implemented to the beginning of the twenty-​first century, including adoption of measures to ‘gradually ensure the compatibility of domestic legislation with EU legislation’. The bodies responsible for implementation were the Russian Ministry of Justice with the participation of relevant ministries and agencies, and the Federal Statistical Agency (Goskomstat). The idea was that these structures were supposed to ensure the development of a special programme of approximation. See Decision of the Government of the Russian Federation no 809 of 21 July 1998 ‘On Approval of a Prospective Plan of Action for implementation of the Agreement on Partnership and Cooperation establishing a partnership between the Russian Federation, on the one hand, and the European Communities and their Member States, on the other hand’, SZ RF, 17 August 1998, no 33, 4043. 54 Kalinichenko, ‘Legislative Approximation’ (n 50) 252‒53. 55 See A Astapovitch, Corporate Reform and Harmonization of Corporate Law in Russia and the EU (Volters Kluver 2005) (in Russian). 56 See V Prosvetov and A Shastitko, Analysis of Currently Effective Antimonopoly Law in the RF and Comparison with Contemporary EU Law. Possible Options for Increasing the Efficiency of Enforcement in Russia. Analysis of Anti-​Trust Legislation and Law Enforcement in the EU (2005). 57 Decree of the President of the Russian Federation no 1108 of 18 July 2008 ‘On Improvement of the Civil Code of the Russian Federation’, SZ RF, 21 July 2008, no 29 (Part I), Art 3482.

154  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES of legal transplants from EU Member States in the course of legal reform in Russia was supported by the ruling Russian political elite.58 The process of adoption by Russia of legal transplants originating from EU Member States took place in the area of public law too. In particular, Russia incorporated German and French standards of Value Added Tax (VAT) into its national legal system.59 With regard to the second approach to the process of legislative approximation in Russia, it can be emphasized that Russian legislation is based on various EU sectoral acquis in line with priority areas defined in the approximation clause of the EU–​Russia PCA. For example, in the field of securities market regulation,60 Russia implemented EU Directive 2003/​6/​EC of 28 January 2003 on insider dealing and market manipulation (market abuse),61 together with the rules adopted by the European Commission pursuant to this Directive,62 as well as the experience of its implementation in Germany and the United Kingdom. However, it must be admitted that in some areas of legislative approximation (for instance, environmental protection) Russia has not managed to achieve significant progress, despite technical and financial assistance from the EU.63 Furthermore, the process of legislative approximation in Russia is increasingly influenced by ‘back door’ legislative approximation with the EU acquis originating from the Eurasian integration model.64 Eurasian integration structures have 58 For instance, former Russian President Dmitry Medvedev advocated modernization of the Russian Civil Code provisions on the basis of EU law norms and the law of EU Member States. See Dmitry A Medvedev, ‘Civil Code of Russia: Its Role in the Development of Market Economy and Establishing the Rule of Law’ (2007) 2 Journal of Civil Law 7 (in Russian). 59 See Andrey Kozyrin, ‘Comparative Legal Method in Financial Law’ (2009) 9 Financial Law 5 (in Russian). Also, appropriate provisions of the Russian Tax Code 1998‒2000 take into account recommendations by the European Commission for tax reform in Russia. See Olga Borzunova, The Tax Code of the Russian Federation: Genesis, History and Improving Tendencies (Justicinform 2010) 121 (in Russian). 60 Federal Law no 224-​FZ of 27 July 2010 ‘On Countering misuse of insider information and market manipulation and Amendments to Certain Legislative Acts of the Russian Federation’, SZ RF, 02 August 2010, no 31, Art 4193. 61 [2003] OJ 2003 L96/​16. 62 An explanatory note to the act refers to the following acts of the Commission, whose provisions were reflected in the above-​mentioned Federal Law: Commission Directive 2003/​124/​EC of 22 December 2003 implementing Directive 2003/​6/​EC of the European Parliament and of the Council as regards the definition and public disclosure of inside information and the definition of market manipulation [2003] OJ L339/​70; Commission Directive 2003/​125/​EC of 22 December 2003 implementing Directive 2003/​6/​EC of the European Parliament and of the Council as regards the fair presentation of investment recommendations and the disclosure of conflicts of interest [2003] OJ L339/​73; Commission Directive 2004/​72/​EC of 29 April 2004 implementing Directive 2003/​6/​EC of the European Parliament and of the Council as regards accepted market practices, the definition of inside information in relation to derivatives on commodities, the drawing up of lists of insiders, the notification of managers’ transactions and the notification of suspicious transactions [2004] OJ L162/​70; Commission Regulation (EC) 2273/​2003 of 22 December 2003 implementing Directive 2003/​6/​EC of the European Parliament and of the Council as regards exemptions for buy-​back programmes and stabilisation of financial instruments [2003] OJ L336/​33. 63 Wybe Douma and Irina Krasnova ‘ “Renovation” of the Russian Legislation’ (2004) 5 Ecology and Life 24–​27 (in Russian). 64 On the notion of ‘back door approximation’.

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  155 already indirectly implemented a considerable number of EU sectoral acquis. For example, the provisions of the Customs Code of the Customs Union of 2009 and the technical regulations of the Eurasian Economic Commission are very similar to certain provisions of the EU acquis. Although the Eurasian Economic Commission does not pursue formal legislative approximation with the EU acquis, potentially the process of informal legislative approximation with EU law may gradually lead to regulatory convergence of the ‘Eurasian integration’ acquis with relevant EU acquis.65 Besides, implementation of EU–​Russia bilateral agreements in the Russian legal order may also generate certain forms of regulatory convergence which are not based on formal legislative approximation by their nature. For instance, the notion ‘readmission’ was introduced into the Russian legal order by the Federal Law of 27 July 201066 in the course of implementation of the EU–​Russia agreement on readmission of 2006.67 Another example is the Facilitated Rail Transit Document for Russian citizens travelling to Kaliningrad through the territory of Lithuania. In order to enable the functioning of the Facilitated Rail Transit Document on the territory of Russia, the Russian Government had to complement relevant EU acquis68 through adoption of a national legal act.69 The major incentive for Russian judges to apply the EU acquis stems from the EU–​Russia PCA. More than 200 cases on applying the EU–​Russia PCA and about 1,000 cases with links to EU law are known in today’s Russian judicial practice.70 The Russian judiciary treats the EU–​Russia PCA as an international agreement which contains self-​executing rules within the Russian legal order. In case of conflict, Russian judges prefer to acknowledge the priority of the EU–​Russia PCA over national legislation.71 This makes the EU–​Russia PCA an efficient instrument 65 Another supranational institution of the Custom Union—​The Court of the Eurasian Economic Community—​has not yet applied the EU acquis. Since its establishment in December 2011, the Eurasian Court has considered only two cases. However, in the ONP case (judgment of the Appeals chamber of 21 February 2013) the Court of the Eurasian Economic Community referred to the case law of the ECtHR in Credit and Industrial Bank v Czech Republic App no 29010/​95 (ECtHR, 21 October 2003). This is the first direct evidence of the Europeanization of the Eurasian Economic Community Court’s practice. 66 Federal Law no 180-​FZ of 27 July 2010 ‘On amendments to certain legislative acts of the Russian Federation in connection with realization of the Treaties of the Russian Federation on readmission’, SZ RF, 26 July 2010, no 30, Art 4011. 67 Agreement of 17 May 2007 between the European Community and the Russian Federation on readmission [2007] OJ L129, 40–​60. 68 Council Regulation (EC) 693/​2003 of 14 April 2003 establishing a specific Facilitated Transit Document (FTD), a Facilitated Rail Transit Document (FRTD) and amending the Common Consular Instructions and the Common Manual [2003] OJ 2003 L99/​8. 69 Ordinance of the Russian Government no 361 of 23 June 2003 ‘On measures to fulfillment of the obligations undertaken by the Russian Federation in the Joint Statement of the Russian Federation and the European Union on transit between the Kaliningrad region and the rest of the Russian Federation’, SZ RF, 30 June 2003, no 26, Art 2658. 70 According to query results in the commercial legal data-​base ‘Consultant Plus’. 71 More than twenty cases on applying the PCA and about 100 cases with links to EU law are known in Russian judicial practice today. See Petrov and Kalinichenko (n 37) 337‒39.

156  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES for bilateral cooperation without further implementation into the Russian legal system. Russian courts consider the EU-​Russia PCA as an international agreement which guarantees the protection of rights and interests of Russian nationals and subjects in their economic relations with the EU. Thereby, Russian courts have developed considerable experience in applying the provisions of the EU–​Russia PCA in their decisions, although this mainly has to do with economic-​related fields (trade, customs, and tax). There is a quite limited practice of Russian courts related to democratic and human rights clauses in the EU–​Russia PCA, which mainly deals with EU–​Russia economic relations. In general, the Russian judiciary has acknowledged the importance of respecting democratic principles and human rights for the partnership between Russia and the EU as enshrined in Article 2 of the EU–​ Russia PCA. Respect for human rights, fundamental freedoms, and the rule of law are interpreted by Russian courts as principles corresponding to the provisions of the Russian Constitution. Russian courts have confirmed that these principles are of a legal nature and form common values shared by the EU, its Member States, and Russia. For instance, in British Bank v the Svyatoslav Fyodorov ‘Eye Microsurgery’ Clinic,72 the Russian Supreme Court considered that Article 98 of the PCA could form the legal basis for execution of a judgment by a British court in Russia. In the notorious YUKOS case,73 the Federal Arbitration Court of Moscow District acknowledged that the duty of Russian courts to recognize foreign judicial decisions which can serve as the legal basis for execution of judgments of any national court of an EU Member State,74 follows from the general objectives of the EU–​Russia PCA governing sincere cooperation between the parties to the agreement.75 Analysis of the case law of Russian courts shows that, undoubtedly, the EU–​ Russia PCA has found better reception by Russian courts in economic-​related fields rather than in other fields. For instance, even before Russia’s accession to the WTO, Russian courts recognized the possibility of applying selected GATT/​GATS rules mentioned in the EU–​Russia PCA.76 Russian courts applied the EU–​Russia PCA with the purpose of protecting the rights of European investors who exercised freedom of establishment within the territory of Russia, on the basis of the most-​favoured nation (MFN) treatment under the EU–​Russia PCA.77 In Volvo Car Corporation v Patent Dispute Chamber and ‘Verit’ v Patent Dispute Chamber, the 72 Judgment of the Supreme Court of Russia of 7 June 2002 (5-​G02-​64). 73 Judgment of the Federal Commercial Court of Moscow District of 2 March 2006 (KG-​A40/​ 698-​06-​P). 74 EU–​Russia PCA, Art 98. 75 EU–​Russia PCA, Art 2. 76 For instance, Judgment of the Federal Commercial Court of the North-​West District of Russia of 8 October 1998 Master Shipping v Tax Office of St-​Petersburg (А56-​11044/​98), Judgment of the Federal Commercial Court of Moscow District of 7 April 1999 ‘Popelensky and Partners’ v Central Bank of Russia (КА-​А40/​824-​99 BPP), Judgment of the Federal Commercial Court of Far East District of Russia of 24 September 2001 Sakhalinmorneftegas v Office for Monetary Control of Sakhalin Region (F03-​А59/​ 01-​2/​1791). 77 Articles 28 and 30.

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  157 Federal Arbitration Court of Moscow District confirmed that the EU–​Russia PCA imposes binding commitments on Russia with regard to protection of intellectual property rights, and therefore the relevant provisions of the EU–​Russia PCA have priority over relevant national legislation.78 In the Alternativa case, the Arbitration Court of Ivanovo Region referred to the Protocol to the EU–Russia PCA on Union enlargement in 2004 to protect the interests of a Russian company which imported doors from Estonia and wanted to enjoy MFN treatment under the agreement.79 Furthermore, in their decisions Russian courts have frequently referred to the EU–​Russia sectoral agreements in science and technology, the export of certain steel products, and in tax cases. For example, the Arbitration Court of Moscow has applied the provisions of the EU–​Russia Agreement on cooperation in the field of science and technology (2000)80 and the EU–​Russia Agreement on export of certain steel products (1997).81 In the opinion of some Russian judges, the binding and self-​executory character of the EU–​Russia PCA provides a legal basis for applying EU primary and secondary legislation in their judgments.82 Of course, Russian courts have never acknowledged that they should apply EU primary law or the principles of EU law in their decisions. However, in Nalchinsky Zavod Poluprovodnikovykh Priborov v Custom Office of Kabardino-​Balkaria, the Federal Arbitration Court of North Caucasus District of Russia confirmed at appeal level that Russia was not bound by the EC Treaty but, at the same time, did not exclude the possibility of applying provisions of the EC Treaty if it follows from the objectives of the EU–​Russia PCA.83 In the Beslan case, the Constitutional Court of Russia referred to the EU Framework Decision of 13 June 2002 on combating terrorism84 as a persuasive source of reference.85 Nevertheless, it would be premature to suggest that Russian courts consistently and systematically apply EU secondary law in their judgments. EU secondary law has been cited by Russian courts on several sporadic occasions. In some cases, these references were based on Article 55 of the EU–​Russia PCA, which contains the soft 78 See Judgment of the Federal Commercial Court of Moscow District of 29 June 2005 (КА-​А40/​ 5565-​05) and Judgment of the Federal Commercial Court of Moscow District of 31 August 2005 (КА-​ А40/​8111-​05). 79 Judgment of the Commercial Court of Ivanovo Region of 13 October 2004 OOO ‘Alternativa’ v Ivanovo Custom Office (Case N А17-​151А/​5-​2004). 80 See Judgment of the Commercial Court of Moscow of 2 September 2005 Compania Prikladnye Technologii v Tax Office of Moscow (А40-​33242/​05-​114-​247). 81 See Judgment of the Commercial Court of Moscow of 18 December 2006 Gruppa TransLiz v Tax Office of Moscow (А40-​65629\06-​127-​356). 82 Judgment of the Federal Commercial Court of North Caucasus District of Russia of 2 July 2003 Nalchinsky Zavod Poluprovodnikovykh Priborov v Custom Office of Kabardino-​Balkaria (F08-​1873/​ 2003-​839А). 83 ibid paras 16 and 17. 84 [2002] OJ L164/​3. 85 Order of 19 February 2009 no 137-​O-​O (not published officially) accessed 2 May 2020.

158  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES obligation for Russia to approximate its legislation in certain fields to that of the EU. This has happened only in cases where Russian federal laws give preference to Russia’s international obligations over its national legislation.86 In other cases, references to EU secondary legislation were justified by mutual commitments to ensure equal treatment of Russian and EU nationals, as provided in the EU–​Russia PCA. Furthermore, Russian courts have referred to CJEU case law, as is explained in section D below. Looking at the pattern of application of the EU acquis by Russian courts more widely, we can make several observations. The first observation is that Russian judges do not apply the EU acquis as a separate source of law, but consider it as a part of international public law. Russian judges are fully aware that EU law is not binding in the Russian legal system, and therefore refer to EU legal sources exclusively through the prism of the EU–​Russia PCA. However, in some cases, EU primary and secondary laws have found application in judgments of Russian courts not as a binding, but as a persuasive source of law.87

D.  Citation of CJEU Decisions in Russian Case Law A special database for judgments of Russian courts ‒‒ the ‘Justice’ State Automatized System of the Russian Federation ( accessed 3 May 2020)—​was installed in 2006. It is open to the public and collects all judgments issued by the Supreme Court and courts of general jurisdiction, including justice of the peace courts and arbitration courts. However, this database does not support a content search by words or phrases, so it is not suitable for the research in this chapter. Similarly, the database on the official webpage of the Russian Constitutional Court also does not support these search options. So, for this research I  used the ‘Consultant Plus’ commercial legal database, which contains a specific section dedicated to court decisions (some 9  million documents). This database is well known among Russian lawyers and allows advanced options in content search. However, the section on judicial decisions is incomplete, covering only judgments of higher courts, arbitration courts, including the intellectual property rights court, and courts at the federal subject level. Consequently, this research is limited by the technical features of current legal databases on Russian law and judicial practice.

86 Article 4(4) of Federal Law of 18 December 2002 no 184-​FZ ‘On technical regulations’, SZ RF, 30 December 2002, no 52 (1), Art 5140. 87 Order of the Constitutional Court of the Russian Federation of 19 February 2009 (137-​О-​О) Beslan Mothers (137-​O-​O); Judgment of the Constitutional Court of the Russian Federation of 22 June 2010 Malitsky (14-​P); Order of the High Court of the Russian Federation of 31 July 2008 ‘Rezonans’ (КАS08-​ 434); Judgment of the Federal Commercial Court of Moscow District of 15 April 2009 Natsrybkachestvo (А40-​31562/​08-​130-​338).

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  159 In the period between 2006 and 2018, Russian courts issued fifty-​two judgments referring to CJEU practice (Table 7.1). Only three of these cases make general reference to ‘established CJEU practice’ but without mentioning a specific case, while the rest of the cases tend to mention concrete CJEU judgments. These contain seventy-​eight citations of twenty-​eight CJEU judgments issued in the period from 1981 to 2017. The most-​cited CJEU cases are: 1. Joined cases C-​354/​03, C-​355/​03, and C-​484/​03 Optigen Ltd (twelve times in the period 2006–​11) in cases in the taxation field; 2. Case 139/​80 Blanckaert & Willems (nine times in the period 2012–​16) in the cases in the choice of jurisdiction field; 3. Case C-​48/​09 Lego Juris (six times in the period 2015–​17) in cases related to protection of intellectual property rights. Table 7.1  Cases where CJEU decisions were cited in Russia (2006–​18) (number of citations in brackets) Period Constitutional Court

2006–​13 1 (0)1

2014–​18

Total

–​

1 (0)

2 (2)2

2 (2)

Higher arbitration court

4 (5)3

–​

4 (5)

Arbitration district courts

3 (3)4

–​

3 (3)

5 (5)5

5 (5)

Arbitration appellate courts

8 (8)6

24 (48)7

32 (56)

Arbitration courts at the federal subject level

3 (4)8

1 (1)9

4 (5)

Regional courts of –​ general jurisdiction

1(2)10

1 (2)

Total

33 (58)

52 (78)

Supreme Court

Court of IP Rights

–​

–​

18 (20)

Source: Author’s own research from access to official and commercial databases. 1 Dissent of Gadjiev J in the Constitutional Court 27 March 2012 (Case 8-​II/​2012), in a case concerning review of the constitutionality of Item 1 of Article 23 of the Federal Law ‘On International Treaties of the Russian Federation’ in connection with the complaint of ID Ushakov. 2 Supreme Court of Russia 7 December 2015 Kray (Case N 307-​ЭС15-​15317(1)); Supreme Court of Russia 6 March 2017 Archi.ru (Case N 305-​ЭС16-​18302(1)).

Continued

160  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Table 7.1  Continued 3 Order of Higher Arbitration Court of Russia of 13 January 2012 Socprop Sarl (Case N ВАС-​14851/​11(1));

Order of Higher Arbitration Court of Russia of 27 February 2012 Parex Banka (Case N ВАС-​16404/​ 11(1)); Presidium judgment of Higher Arbitration Court of Russia of 24 April 2012 Parex Banka (Case N 16404/​11(2)); Order of Higher Arbitration Court of Russia 2012 Evian (Case N ВАС-​1407/​12(1)). 4 Judgment of Federal Arbitration Court of Moscow District of 4 March 2008 Business-​Center Krylatsky (Case N КА-​А40/​1441-​08(1)); Judgment of Federal Arbitration Court of Moscow District of 28 January 2010 Kulon (Case N А40-​2222/​09-​143-​9(1)); Judgment of Federal Arbitration Court of Ural District of 7 August 2013 ALTA (Case N Ф09-​6855/​13(1)). 5 Judgment of Court of IP Rights of 24 April 2017 Igrograd (Case N СИП-​82/​2017(1)); Judgment of Court of IP Rights of 26 April 2017 Igrograd II (Case N СИП-​84/​2017(1)); Presidium judgment of Court of IP Rights of 4 August 2017 PLATIUS II (Case N СИП-​234/​2016(1)); Presidium judgment of Court of IP Rights of 21 August 2017 PLATIUS (Case N СИП-​233/​2016(1)); Judgment of Court of IP Rights of 18 January 2018 CHEMPIOIL (Case N СИП-​171/​2016(1)). 6 Judgment of Seventeenth Arbitration Appellate Court of 27 October 2006 A v Tax Office of Berezovsky Town (Case N 17АП-​943/​06-​АК(1)); Judgment of Seventeenth Arbitration Appellate Court of 10 November 2006 U v Tax Office of the Udmurt Republic (Case N 17АП-​1668/​06-​АК(1)); Judgment of Seventeenth Arbitration Appellate Court of 26 December 2006 Tax Office of the Sverdlovsk Oblast v D (Case N А60-​5297/​2006-​С10(1)); Judgment of Seventeenth Arbitration Appellate Court of 12 March 2007 Tax Office of Alapaevsk v A (Case N 17АП-​1223/​07-​АК(1)); Judgment of Seventeenth Arbitration Appellate Court of 27 March 2007 P v Tax Office of Perm Kray (Case N 17АП-​1639/​07-​ АК(1)); Judgment of Seventeenth Arbitration Appellate Court of 17 May 2007 A v Tax Office of the Udmurt Republic (Case N А71-​992/​07-​А6(1)); Judgment of Thirteenth Arbitration Appeal Court of 5 September 2013 Bank of Cyprus (Case N А56-​20403/​2013(1)). 7 Judgment of Thirteenth Arbitration Appellate Court of 5 September 2013 Bank of Cyprus (Case N А56-​ 20403/​2013(1)); Judgment of Tenth Arbitration Appellate Court of 27 May 2014 Bistro Pronto (Case N А41-​20424/​13(5)); Judgment of Fourth Arbitration Appellate Court of 26 September 2014 TransMash Holding (Case N А78-​5492/​2013(7)); Judgment of Fifth Arbitration Appellate Court of 30 October 2014 Korea Trading and Industries Co Ltd (Case N 05АП-​13699/​2014(1)); Judgment of Fifteenth Arbitration Appellate Court of 8 February 2015 MODER (Case N 15АП-​4696/​2014); Judgment of Fourth Arbitration Appellate Court of 24 February 2015 Stroy-​Trust (Case N А19-​16839/​2014(1)); Judgment of Thirteenth Arbitration Appellate Court of 11 March 2015 ELORG (Case N А56-​41706/​2014(1)); Judgment of Nineteenth Arbitration Appellate Court of 30 June 2015 Kerama Marazzi (Case N А35-​6862/​2014); Judgment of Nineteenth Arbitration Appellate Court of 9 July 2015 ADK Modulraum GmbH (Case N А14-​16077/​2014(1)); Judgment of Ninth Arbitration Appellate Court of 30 July 2015 AstanaNeftStroy (Case N 09АП-​30486/​2015(1)); Judgment of Thirteenth Arbitration Appellate Court of 14 October 2015 KenigOpt (Case N А21-​3416/​2015(1)); Judgment of Thirteenth Arbitration Appellate Court of 27 October 2015 ELORG II (Case N А56-​23775/​2015(1)); Judgment of Fifth Arbitration Appellate Court of 4 March 2016 Lego Juris A/​S (Case N 05АП-​573/​2016(1)); Judgment of Fifth Arbitration Appellate Court of 28 March 2016 Lego Juris A/​S II (Case N 05АП-​608/​2016(1)); Judgment of Ninth Arbitration Appellate Court of 27 May 2016 Rosenergoprom (Case N 09АП-​13084/​2016-​АК(3)); Judgment of Ninth Arbitration Appellate Court of 24 June 2016 UNEHS GmbH (Case N 09АП-​28601/​2016-​АК(1)); Judgment of Twelfth Arbitration Appellate Court of 2 September 2016 Biosintez (Case N А57-​26584/​2015(3)); Judgment of Fourth Arbitration Appellate Court of 21 December 2016 Energosberegayusshiye Technologii (Case N А78-​9902/​2016(7)); Judgment of Fifth Arbitration Appellate Court of 20 January 2017 Lego Juris A/​S III Radius Service (Case N А51-​23075/​2016(1)); Judgment of Seventeenth Arbitration Appellate Court of 13 February 2017 (Case N 17АП-​20131/​2016-​АК(1)); Judgment of Fourteenth Arbitration Appellate Court of 18 October 2017 ARMC (Case N А66-​6719/​2017(3)); Judgment of Eleventh Arbitration Appellate Court of 18 December 2017 Robert Bosch (Case N А72-​20/​2017(3)); Judgment of Fourteenth Arbitration Appellate Court of 22 January 2018 ARMC II (Case N А66-​2262/​2017(3)); Judgment of Seventh Arbitration Appellate Court of 31 January 2018 Altayenergosbyt (Case N А03-​18412/​2017(1)). 8 Judgment of Moscow Arbitration Court of 27 October 2006 Adidas (Case N А40-​48445/​06-​90-​ 252(2)); Judgment of Moscow Arbitration Court of 11 September 2007 Business-​Center Krylatsky (Case N А40-​24994/​07-​108-​118(1)); Judgment of Moscow Arbitration Court of 24 June 2011 Soyuzreactive (Case N А40-​116507/​10-​118-​652(1)). 9 Judgment of Moscow Arbitration Court of 28 January 2015 Novaya Tabachnaya Kompaniya (Case N А40-​87775/​14(1)). 10 Appeal Order of Moscow City Court of 14 November 2017 AlItalia (Case N 33-​41219/​2017(2)).

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  161 Table 7.2  Citations of CJEU decisions in Russia according to fields of law (2006–​18) Constitutional Court

Supreme Court (including Higher Arbitration Court before 2014)

Arbitration district courts (including the Court of IP Rights)

Regional arbitration courts (Arbitration appellate courts and arbitration courts at the federal subject level)

Regional courts of general jurisdiction

Common principles

1

–​

–​

3

–​

Intellectual property

–​

2

5

4

–​

Transport

–​

–​

–​

–​

1

Jurisdiction –​

4

1

6

–​

Taxation

–​

–​

3

12

–​

Customs

–​

–​

–​

10

–​

Other

–​

–​

–​

–​

–​

Source: Author’s own research from access to official and commercial databases.

Russian courts cited CJEU judgments in their cases in civil and commercial matters, in such fields as taxation, choice of jurisdiction, intellectual property rights, customs, and transport liability (Table 7.2). Most of these cases (forty-​four) were considered by the Russian arbitration courts at different levels of the judicial system. The higher courts of Russia cited CJEU case law seven times in six cases before the Higher Arbitration Court (four) and the Supreme Court (two). As for the practice of the Russian Constitutional Court, this has only one mention of ‘established CJEU practice’ in the dissenting opinion of Judge Gadjiev in a case regarding the constitutionality of the provisions of Russian legislation concerning interim application of international treaties to which Russia is a party. The Russian mid-​level arbitration courts first quoted CJEU case law in their judgments in tax cases in 2006. The Higher Arbitration Court of Russia referred to CJEU case law for the first time in 2012. During the period between 2006 and 2013 the Russian courts cited five CJEU judgments twenty times in eighteen cases in the tax and jurisdiction fields. Three of these CJEU cases were cited by the High Arbitration Court five times in four decisions.

162  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES In the period 2014–​18, Russian courts mentioned twenty-​five CJEU judgments fifty-​eight times in thirty-​three cases. The courts have enlarged the scope of where they use CJEU practice, as they began referring to CJEU case law in their decisions in fields other than only tax and jurisdiction. They also started referring to ‘principles of law’ in accordance with established CJEU practice. The Supreme Court of Russia has cited two CJEU cases in two decisions in the fields of jurisdiction and intellectual property rights protection, respectively. The first time it referred to CJEU practice was in 2015. The Court of Intellectual Property Rights considered five cases where it quoted CJEU practice in the field of intellectual property rights. The first time that a Court of General Jurisdiction applied CJEU case law in its practice was in a case concerning compensation for a cancelled flight in 2017. In most of these decisions, Russian courts refer to, or even cite, CJEU case law as an appropriate example of international practice. As a rule, such quoting is not significant for the final conclusion in the case, and thus does not directly impact the outcome (Figure 7.1). The first time that Russian courts mentioned CJEU case law was in the practice of Arbitration Courts in tax cases in 2006. The Moscow Arbitration Court in its judgment of 27 October 2006 in a case involving an application by OOO88 ‘Adidas’,89

35

No of citations

30 25 20 15 10 5 0

2006−13 Higher courts Jurisdiction

2014−18

Date

Principles of law Transport

Taxation Customs

Intellectual property

Fig 7.1  CJEU citations by Russian Courts 2006–​18 Source: Author’s own research from access to official and commercial databases. 88 This is an abbreviation of a legal entity type under the Russian Civil Code—​’Obschestvo s ogranichennoy otvetstvennostyu’ (OOO), an analogue of the German ‘GmbH’. In its practice on ‘Russian’ cases, the CJEU mentions this short term without any explanations. 89 Judgment of the Moscow Arbitration Court of 27 October 2006 Adidas (Case N А40-​48445/​ 06-​90-​252).

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  163 referred to CJEU case law in interpreting the EC Sixth Tax Directive in relation to the rights of taxpayers regarding VAT.90 The court mentioned the CJEU’s conclusions in Optigen Ltd and Federation of Technological Industries as examples of best international practice for the background to its own findings and conclusions in Adidas.91 The reference concerned the CJEU’s position in relation to the final VAT payer’s good faith presumption in the case of a tax offence in a supply chain. On the same date, the Seventeenth Arbitration Appellate Court (resident in the City of Perm) applied the Optigen Ltd case in a similar way in its judgment in a case concerning an application by citizen A against the Berezovsky Town Tax Office.92 Interestingly, the court considered this case as a second instance for the Sverdlovsk Oblast Arbitration Court judgment of 2 August 2006 in Case А60-​ 36650/​2006-​С10. However, it is not possible to establish whether the Arbitration Court referred to CJEU case law in its judgment at first instance, as the existing database of Sverdlovsk Oblast Arbitration Court decisions contains only judgments after 2008. Down the line, both courts started to refer to CJEU case law in their further decisions in cases of a similar nature. In the period between November 2006 and May 2007, the Seventeenth Arbitration Appellate Court referred to Optigen Ltd in six cases.93 The Moscow Arbitration Court mentioned this CJEU case for the second time in Business-​Centre Krylatsky (judgment of 7 September 2007).94 Apart from that, the Federal Arbitration Court of Moscow District in its judgment of 6 November 2007 annulled the Moscow Arbitration Court judgment in Adidas.95 However, the next higher court’s reasons for annulment had nothing to do with this reference to CJEU case law. On the contrary, the Federal Arbitration 90 Joint Cases C-​354/​03, C-​355/​03, and C-​484/​03 Optigen Ltd, Fulcrum Electronics Ltd, Bond House Systems Ltd v Commissioners of Customs & Excise [2006] ECR 483; Case С-​384/​04 Federation of Technological Industries v Commissioners of Customs & Excise [2006] ECR 4191. 91 It is important to notice that nine years before this case, the Supreme Court of Russia dismissed the plea by a party to take into account the provisions of the EC Sixth Tax Directive in the BrAZ case (Supreme Court Judgment of 7 February 1997 on application by OAO BrAZ and others, Bulleten Verkhovnogo Suda Rossiyskoy Federatsii (Bulletin of the Supreme Court of the Russian Federation), No 3, 1997). 92 Judgment of Seventeenth Arbitration Appeal Court of 27 October 2006 A v Tax Office of Berezovsky Town (Case N 17АП-​943/​06-​АК). 93 Judgment of Seventeenth Arbitration Appellate Court of 10 November 2006 U v Tax Office of the Udmurt Republic (Case N 17АП-​1668/​06-​АК); Judgment of Seventeenth Arbitration Appellate Court of 26 December 2006 Tax Office of the Sverdlovsk Oblast v D (Case N А60-​5297/​2006-​С10); Judgment of seventeenth Arbitration Appellate Court of 12 March 2007 Tax Office of Alapaevsk v A (Case N 17АП-​ 1223/​07-​АК); Judgment of Seventeenth Arbitration Appellate Court of 27 March 2007 P v Tax Office of Perm Kray (Case N 17АП-​1639/​07-​АК); Judgement of Seventeenth Arbitration Appellate Court of 17 May 2007 A v Tax Office of the Udmurt Republic (Case N А71-​992/​07-​А6); Judgment of Seventeenth Arbitration Appellate Court of 18 May 2007 B v Tax Office of the Udmurt Republic (Case N А71-​4681/​ 07-​А18). 94 Judgment of Moscow Arbitration Court of 11 September 2007 Business-​Center Krylatsky (Case N А40-​24994/​07-​108-​118). 95 Judgment of Federal Arbitration Court of Moscow District of 6 November 2007 Adidas (Case N КА-​А40/​1441-​08).

164  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Court of Moscow District in another judgment on 4 March 2008 (the second instance in the Business-​Centre Krylatsky case)96 especially stressed that the inferior court ‘correctly applied’ the CJEU legal positions in the Optigen Ltd case. Moreover, the Moscow Arbitration Court has applied this CJEU case in some of its later judgments.97 Consequently, ex nunc the Russian mid-​level arbitration courts have formed an established judicial practice of referring to CJEU case law in their decisions. Application of CJEU case law in decisions of the Russian Higher Arbitration Court dates back to 2012 in cases involving choice of jurisdiction. The first time this court mentioned a CJEU judgment was in its Order of 13 January 2012 on an application by the company ‘Socprop Sarl’ from Luxembourg.98 The Higher Arbitration Court referred to the CJEU judgment in Blanckaert & Willems99 to support its position that the ‘practice of international justice’ (inter alia, applied in Luxembourg–​PK) required, in order to establish the state court’s jurisdiction, proof of the company’s agency affiliation with the state territory where the contested legal relations appeared. In another case, the Higher Arbitration Court in its Order of 27 February 2012100 referred to Schotte v Parfums Rothschild101 to support its position on recognition of branches and agencies. This case concerned the situation where branches or agencies were not officially established but had a similar name and operations as the subdivision of a foreign legal entity. Considering this case at second instance, the Presidium of the Higher Arbitration Court in its judgment of 24 April 2012 united two previously formulated approaches and cited both of the aforementioned CJEU cases.102 In 2013, the Federal Arbitration Court of the Ural District103 and the Thirteenth Arbitration Appellate Court104 (resident in St Petersburg) adopted the position of the Higher Arbitration Court in its Socprop case and referred to the Blanckaert & Willems case in their judgments. During the period 2010–​12, the Russian Higher Arbitration of Russia considered several cases concerning the non-​discrimination principle and access to justice by EU citizens under the EU–​Russia PCA provisions. According to advocate Anatoly 96 Judgment of Federal Arbitration Court of Moscow District of 4 March 2008 Business-​Center Krylatsky (Case N КА-​А40/​1441-​08). 97 Judgment of Federal Arbitration Court of Moscow District of 28 January 2010 Kulon (Case N А40-​2222/​09-​143-​9); Judgment of Moscow Arbitration Court of 24 June 2011 Soyuzreactive (Case N А40-​116507/​10-​118-​652). 98 Order of Higher Arbitration Court of Russia of 13 January 2012 Socprop Sarl (Case N ВАС-​14851/​11). 99 Case 139/​80 Blanckaert & Willems PVBA v Luise Trost [1981] ECR I–​00819. 100 Order of Higher Arbitration Court of Russia of 27 February 2012 Parex Banka (Case N ВАС-​ 16404/​11). 101 Case 218/​86 SAR Schotte GmbH v Parfums Rothschild SARL [1987] ECR I–​04905. 102 Presidium judgment of Higher Arbitration Court of Russia of 24 April 2012 Parex Banka (Case N 16404/​11). 103 Judgment of Federal Arbitration Court of Ural District of 7 August 2013 ALTA (Case N F09-​6855/​13). 104 Judgment of Thirteenth Arbitration Appellate Court of 5 September 2013 Bank of Cyprus (Case N А56-​20403/​2013).

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  165 Semenov,105 several times he and his colleague, advocate Aleksandr Osokin, who represented the parties in these cases, tried to convince the judges of the Higher Arbitration Court to take into account the CJEU judgment in Simutenkov,106 which granted direct effect to the EU–​Russia PCA provisions in relation to the prohibition against discriminatory treatment of Russian individuals within EU territory. However, each time the Higher Arbitration Court rejected their pleas. The Court mentioned this CJEU case only once in an interim award in the Evian case, but this was not significant for resolution of the case.107 Eventually, in its judgment of 1 October 2012 in the Topol case,108 the Higher Arbitration Court confirmed direct effect of the PCA provisions in the Russian legal order, but without reference to the Simutenkov case. These situations show that from the beginning Russian courts focused on use of CJEU case law in certain areas only: taxation, choice of jurisdiction, intellectual property rights, and customs. During the period 2014–​18, Russian courts enlarged and developed the practice of CJEU case law citations in their decisions. Russian courts have referred to the principles of EU law in several cases. Previously, Russian Constitutional Court judge Gadjiev, in a dissenting opinion to the Court’s judgment of 27 March 2012 no 8-​П/​2012,109 noted that the principle of legal certainty is a common principle of law reflected in CJEU established practice. He did this, however, without reference to concrete cases. Later, the Fourth Arbitration Appellate Court (resident in Chita) mentioned this principle in a similar way in its judgment of 24 February 2015 in the Stroy-​Trust case.110 The Tenth Arbitration Appellate Court (resident in Moscow) in its judgment of 27 May 2014 in the Bistro Pronto case111 mentioned that the CJEU has established a direct-​effect principle for EU international agreements. The Court intended to demonstrate that this principle was widely applied in foreign legal orders and mentioned a number of CJEU cases that it considered as the most important in this regard.112 Thereafter, this judgment was overruled by a judgment of the Court of

105 On the basis of my interview with advocate Anatoly Semenov, 11 March 2018. 106 Case C-​265/​03 Simutenkov v Ministerio de Educación y Cultura, Real Federación Española de Fútbol [2005] ECR I–​2579. This case is well known because it deals with a football player and got much press coverage, and also because it is a continuation of the famous Bosman case. See Case С-​61/​89 Union Royale Belge des Sociétés de Football Association v Jean-​Marc Bosman, Royal Club Liégeois SA v Jean-​Marc Bosman and others, Union des Associations Européennes de Football (UEFA) v Jean-​Marc Bosman [1990] ECR I–​3551. 107 Order of Higher Arbitration Court of Russia of 2012 Evian (Case N ВАС-​1407/​12). 108 Judgment of Higher Arbitration Court of Russia of 1 October 2012 Topol (Case N 6474/​12). 109 Dissent of Judge Gadjiev in the Judgement of the Constitutional Court of 27 March 2012 in a case concerning review of the constitutionality of Item 1 of Art 23 of the Federal Law ‘On International Treaties of the Russian Federation’ in connection with the complaint of ID Ushakov (no 8-​П/​2012). 110 Judgment of Fourth Arbitration Appellate Court of 24 February 2015 Stroy-​Trust (Case N А19-​16839/​2014). 111 Judgment of Tenth Arbitration Appellate Court of 27 May 2014 Bistro Pronto (Case N А41-​20424/​13). 112 Case C-​183/​95 Affish BV v Rijksdienst voor de keuring van Vee en Vlees [1997] ECR I–​04315; Joined Cases C-​364/​95 and C-​365/​95 Т Port GmbH & Co v Hauptzollamt Hamburg-​Jonas [1998] ECR

166  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Intellectual Property Rights of 29 September 2014.113 In another case, the Fifteenth Arbitration Appellate Court (resident in Rostov-​on-​Don), in its judgment of 8 February 2015, noted that in accordance with established CJEU practice, the WTO agreement does not have direct effect in the EU legal order.114 However, the court did not refer to any examples from CJEU practice in its judgment. Picking up the baton from the Higher Arbitration Court, the Russian Supreme Court has cited CJEU case law twice. In the first instance, the court recalled the Higher Arbitration Court’s approach reflected in the Socprop case.115 In its Order of 7 December 2015 in the Kray case116 the Supreme Court applied Blanckaert & Willems to the grounds of the Court’s choice of jurisdiction. Furthermore, this citation has also appeared in different decisions of arbitration appeal courts in the period 2014–​18.117 The other Higher Arbitration Court approach in the Parex banka case was enlarged in the Judgment of the Seventh Arbitration Appellate Court (resident in Tomsk) of 31 January 2018 in a case on an application by AO ‘Altayenergosbyt’ against AO ‘GUZhKH’.118 The Arbitration Appellate Court referred to Schotte v Parfums Rothschild in the settlement between two Russian companies within the territory of Russia. In the second case, the Russian Supreme Court cited the CJEU judgment in Eva-​ Maria Painer v Standard Verlags119 in its Order of March 2017 on an application by OOO ‘Archi.ru’.120 The Supreme Court quoted the CJEU case to acknowledge its position in justifying using a photo which is identified and available to the public. Russian courts have started to make heavy use of CJEU case law in their decisions since 2015. While the Thirteenth Arbitration Appellate Court in its decision of 14 October 2015121 simply mentioned that the CJEU banned the use of a brick

I–​01023; Case C-​53/​96 Hermes International v FHT Marketing Choice BV [1998] ECR I–​03603; Joined Cases C-​300/​98 and C-​392/​98 Parfums Christian Dior & Assco Geriiste GMbH en T van Dijk v Wilhelm Layher GmbH SCoKG en Jayher BV [2000] ECR I–​3583; Case С-​149/​96 Portuguese Republic v Council of the European Union [1999] ECR I–​08395. 113 Judgment of Court of IP Rights of 29 September 2014 Bistro Pronto (Case N А41-​20424/​2013). 114 Judgment of Fifteenth Arbitration Appellate Court of 8 February 2015 MODER (Case N 15АП-​4696/​2014). 115 See n 98. 116 Order of Supreme Court of Russia of 7 December 2015 Kray (Case N 307-​ЭС15-​15317). 117 Judgment of Fifth Arbitration Appellate Court of 30 October 2014 Korea Trading and Industries Co Ltd (Case N 05АП-​13699/​2014); Judgment of Nineteenth Arbitration Appellate Court of 9 July 2015 ADK Modulraum GmbH (Case N А14-​16077/​2014); Judgment of Ninth Arbitration Appellate Court of 30 July 2015 AstanaNeftStroy (Case N 09АП-​30486/​2015); Judgment of Ninth Arbitration Appellate Court of 24 June 2016 UNEHS GmbH (Case N 09АП-​28601/​2016-​АК). 118 Judgment of Seventh Arbitration Appellate Court of 31 January 2018 Altayenergosbyt (Case N А03-​18412/​2017). 119 Case C-​145/​10 Eva-​Maria Painer v Standard VerlagsGmbH and others [2011] ECR I–​12533. 120 Order of Supreme Court of Russia of 6 March 2017 Archi.ru (Case N 305-​ЭС16-​18302). 121 Judgment of Thirteenth Arbitration Appellate Court of 14 October 2015 KenigOpt (Case N А21-​ 3416/​2015).

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  167 as a trademark for the famous producer of children’s constructions ‘Lego’, the Fifth Arbitration Appellate Court, in contrast, cited the Lego Juris case122 directly in its judgments in 2016123 and 2017.124 Established in 2012, the Court of Intellectual Property Rights confirmed the conclusions of inferior courts in these cases and referred to Lego Juris in its similar judgments of 24 and April 2017 on the application of OOO ‘Igrograd’.125 The Court of Intellectual Property Rights cited CJEU practice in other cases in the field of trademark protection in 2017–​18. References were made to the CJEU position on discontinuing use of a trademark in the Brandconcern BV case126 in the Court of Intellectual Rights judgments of 4 and 21 August 2017 in cases involving OOO ‘Platius’.127 Thereafter, in its judgment of 18 January 2018128 concerning use of the ‘CHAMPIOL’ trademark within the territory of Russia, the Court of Intellectual Rights quoted the CJEU’s conclusion in Wolf Oil Corp129 that the trademarks ‘CHAMPION’ and ‘CHAMPIOL’ were different in context and were distinguishable by the public. Several CJEU cases were cited by Russian arbitration appeal courts in their practice in customs matters (2014–​18). These cases fall into three groups. The first group includes the Fourth Arbitration Appellate Court judgments of 26 September 2014130 and 21 December 2016.131 In these decisions, the court stressed that in line with CJEU practice, the Explanatory Notes to the Combined Nomenclature of the European Union132 was not a legally binding act and referred to seven different CJEU cases (with correct references to the paragraphs!).133 122 Case C-​48/​09 P Lego Juris A/​S v OHIM [2010] ECR I–​08403. 123 Judgment of Fifth Arbitration Appellate Court of 4 March 2016 Lego Juris A/​S (Case N 05АП-​ 573/​2016); Judgment of Fifth Arbitration Appellate Court of 28 March 2016 Lego Juris A/​S II (Case N 05АП-​608/​2016). 124 Judgment of Fifth Arbitration Appellate Court of 20 January 2017 Lego Juris A/​S III (Case N А51-​23075/​2016). 125 Judgment of Court of IP Rights of 24 April 2017 Igrograd (Case N СИП-​82/​2017); Judgment of Court of IP Rights of 26 April 2017 Igrograd II (Case N СИП-​84/​2017). 126 Case C-​577/​14 P Brandconcern BV v European Uniof IP Property Office (EUIPO) and Scooters India Ltd [2017] (ECLI:EU:C:2017:122). 127 Presidium judgment of Court of IP Rights of 21 August 2017 PLATIUS (Case N СИП-​233/​2016): Presidium judgment of Court of IP Rights of 4 August 2017 PLATIUS II (Case N СИП-​234/​2016). 128 Judgment of Court of IP Rights of 18 January 2018 CHEMPIOIL (Case N СИП-​171/​2016). 129 Case C-​437/​16 P Wolf Oil Corp v European Uniof IP Property Office [2017] (ECLI:EU:C:2017:737). 130 Judgment of Fourth Arbitration Appellate Court of 26 September 2014 TransMash Holding (Case N А78-​5492/​2013). 131 Judgment of Fourth Arbitration Appellate Court of 21 December 2016 Energosberegayusshiye Technologii (Case N А78-​9902/​2016). 132 Explanatory Notes of 11 November 2016 to the Combined Nomenclature of the European Union [2016] OJ C415, 5. 133 Case C-​173/​08 Kloosterboer Services BV v Inspecteur van de Belastingdienst/​Douane Rotterdam [2009] ECR I–​05347, para 25; Joined cases C-​410/​08–​C-​412/​08 Swiss Caps AG v Hauptzollamt Singen [2009] ECR I–​11991, para 28; Case C-​370/​08 Data I/​O GmbH v Hauptzollamt Hannover [2010] ECR I–​04401, para 30; Case C-​12/​10 Lecson Elektromobile GmbH v Hauptzollamt Dortmund [2010] OJ C63, 11, para 17; Joined cases C-​288/​09 and C-​289/​09 British Sky Broadcasting Group plc (C-​288/​09) and Pace plc (C-​289/​ 09) v The Commissioners for Her Majesty’s Revenue & Customs [2011] ECR I–​02851, para 63; Case C-​196/​

168  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The second group covers decisions where the Russian courts decided the question concerning criteria for customs classification in international practice. The Nineteenth Arbitration Appellate Court in its Judgment of 30 June 2015134 only mentioned established CJEU practice. But later, in several judgments starting with the judgment of the Twelfth Arbitration Appellate Court on 27 May 2016 in the Rosenergoprom case,135 the courts noted the CJEU cases RUMA,136 Skoma-​Lux,137 Kloosterboer Services BV138 as examples of best international practice for their decisions.139 The third group of decisions comprises a couple of Thirteenth Arbitration Appellate Court Judgments of 2015 in the ELORG case,140 where the Russian court mentioned the CJEU conclusion in Turbon International GmbH141 to clarify the position of cartridges for office printers in the Combined Nomenclature. During the period 2015–​17, the Russian arbitration courts quoted CJEU practice in cases involving artificial arrangements in tax law. The Moscow Arbitration Court, in its judgment of 28 January 2015,142 cited the Thin Cap Group Litigation case,143 questioning the rules applying to thin capitalization in terms of artificial arrangements for tax law purposes. In another case, the Seventeenth Arbitration Appellate Court, in its judgment of 13 February 2017,144 referred to the CJEU position in Cadbury Schweppes145 concerning the possibility for the taxpayer to make transactions through artificial arrangements. 10, Paderborner Brauerei Haus Cramer KG v Hauptzollamt Bielefeld [2011] ECR I–​06201, para 32; Joined cases C‑320/​11, C‑330/​11, C‑382/​11, and C‑383/​11 Digitalnet OOD and others v Nachalnik na Mitnicheski punkt—​Varna Zapad pri Mitnitsa Varna [2012] (ECLI:EU:C:2012:745) para 33. 134 Judgment of Nineteenth Arbitration Appellate Court of 30 June 2015 Kerama Marazzi (Case N А35-​6862/​2014). 135 Judgment of Ninth Arbitration Appellate Court of 27 May 2016 Rosenergoprom (Case N 09АП-​ 13084/​2016-​АК). 136 Case C-​183/​06 RUMA GmbH v Oberfinanzdirektion Nürnberg [2007] ECR I–​01559, para 36. 137 Case C-​339/​09 Skoma-​Lux sro v Celní ředitelství Olomouc [2010] ECR I–​13251, para 47. 138 Case C-​173/​08 Kloosterboer Services BV v Inspecteur van de Belastingdienst/​Douane Rotterdam [2009] ECR I–​05347, para 26. 139 Judgment of Twelfth Arbitration Appellate Court of 2 September 2016 Biosintez (Case N А57-​ 26584/​2015); Judgment of Fourteenth Arbitration Appellate Court of 18 October 2017 ARMC (Case N А66-​6719/​2017); Judgment of Eleventh Arbitration Appellate Court of 18 December 2017 Robert Bosch (Case N А72-​20/​2017); Judgment of Fourteenth Arbitration Appellate Court of 22 January 2018 ARMC II (Case N А66-​2262/​2017). 140 Judgments of Thirteenth Arbitration Appellate Court of 11 March 2015 ELORG (Case N А56-​4 1706/​2 014); Judgment of Thirteenth Arbitration Appellate Court of 27 October 2015 ELORG II (Case N А56-​2 3775/​2 015). 141 Case C-​250/​05 Turbon International GmbH v Oberfinanzdirektion Koblenz [2006] ECR I–​10531. 142 Judgment of Moscow Arbitration Court of 28 January 2015 Novaya Tabachnaya Kompaniya (Case N А40-​87775/​14). 143 Case C-​524/​04 Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue, [2007] ECR I–​02107. 144 Judgment of Seventeenth Arbitration Appellate Court of 13 February 2017 Radius Service (Case N 17АП-​20131/​2016-​АК). 145 Case C-​196/​04 Cadbury Schweppes plc and Cadbury Schweppes Overseas Ltd v Commissioners of Inland Revenue [2006] ECR I–​07995.

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  169 The only decision by a Russian general jurisdiction court referring to CJEU case law was given by the Moscow City Court in its Appeal Order of November 2017 on an application by ‘Alitalia Societa Avia IA’.146 In this case, the Moscow City Court decided that the applicable law for the situation had been contained in the provisions of Regulation (EC) 261/​2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights.147 Considering Article 7 of this Regulation, the Moscow City Court applied the CJEU position reflected in Sturgeon and Lepuschitz148 and in Condor Flugdienst & Air France149 concerning the right of compensation for passengers in the case of delayed flights. In this regard, it is important to note that previously the same court refused to apply European Union law (in particular, Regulation 785/​2004)150 in a case against a Russian airline company for the seemingly artificial reason that Russia was not a party to the EU Treaties.151 However, the Russian Supreme Court had earlier referred to Regulation (EC) 261/​2004 in its decisions.152

E.  Analysis of Results Considering the impact of CJEU practice on the Russian legal system, we should move beyond a simple description of application of EU law by Russian courts. It is important to reflect what makes—​or could make—​Russian judges positive about referring to CJEU practice in their judgments. As we shall now see, this is a consequence of both external and internal influences. Russian judges refer to CJEU practice, as a rule, on their own initiative. They are quite well informed on EU law. This is well demonstrated by the following example. At the end of 2009, Professor Sergey Kashkin organized a survey among twenty-​ four judges of the Magadan Oblast (the Magadan Oblast Court, the Magadan Oblast Arbitration Court, and the Magadan City Court) regarding their knowledge of European Union law. He kindly shared the following results with me.153 146 Appeal Order of Moscow City Court of 14 November 2017 AlItalia (Case N 33-​41219/​2017). 147 Regulation (EC) 261/​2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) 295/​91 [2004] OJ L46, 17 February 2004, 1. 148 Joined cases C-​402/​07 and C-​432/​07 Christopher Sturgeon, Gabriel Sturgeon and Alana Sturgeon v Condor Flugdienst GmbH (C-​402/​07) and Stefan Böck and Cornelia Lepuschitz v Air France SA (C-​432/​07) [2009] ECR I–​10923. 149 Joined cases C-​402/​07 and C-​432/​07 Condor Flugdienst GmbH & Air France SA [2009] ECR I–​10923. 150 Regulation (EC) 785/​2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators [2004] OJ L138, 30 April 2004, 1. 151 Appeal Order of Moscow City Court of 22 June 2010 (Case N 33-​14811/​2010). 152 Judgment of Supreme Court of Russia of 29 May 2008 Sakhalinskiye Aviatrassy (Case N ГКПИ08-​1212). 153 Paul Kalinichenko, European Union:  Law and Relations with Russia (NORMA 2012) 184 (in Russian).

170  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES According to the data, eight judges stated that they had applied the provisions of the ECHR in their practice. At the same time, five judges indicated that they had applied ECtHR case law. Furthermore, thirteen judges demonstrated knowledge of EU law, three judges were vaguely aware of EU law, and two judges were not familiar with EU legislation at all, while six judges were undecided. It should be pointed out that eleven judges correctly answered a question about the difference between the ECtHR and the CJEU, while thirteen were undecided. On top of that, eighteen judges were aware of the Lisbon Treaty 2007, while six judges were not. Only ten judges were able to determine the main documents in EU–​Russia relations, while fourteen judges remained undecided. In general, this survey indicates the presence of EU law knowledge among judges of the Russian regions, geographically located in North-​East Asia. To understand why the Russian courts refer to CJEU case law in their decisions, it is necessary to take into account several reasons. First of all, this is a result of EU programmes of a training and educational nature for legal academics and law professionals, including judges and law students (ERASMUS Plus; TAIEX). These efforts stem from the EU’s willingness to integrate Russia into European political, economic, and legal spaces.154 Only closer engagement of Russian judges with European judicial cooperation encourages a better perception of CJEU practice in their judgments.155 In addition, the issue of reciprocity in enforcement of judgments may play a very important role in EU–​ Russia judicial cooperation. Finally, the overall worsening in EU–​Russia relations has not led to a decrease in the judicial practice of quoting CJEU judgments. Second, it is worth mentioning an affinity of legal cultures. Although the Russian language is not an official language of the CJEU and the CJEU does not use the Russian language in its judgments, all the main CJEU judgments are translated into Russian informally. In addition, Russian judges (especially, of higher courts) speak foreign languages and can find CJEU judgments on EU official websites. Among internal factors, it is important to note that the Russian judiciary has often been in difficult situations in terms of resolving cases without clear legislation and practice on civil and commercial matters. This is why they turn to EU law and CJEU practice, as they are more developed, have detailed answers, and are close in spirit and grounds to the Russian legal order. Third, despite current political problems in mutual relations, the EU is ahead of the curve as the main trade and economic partner for Russia. Indeed, the Russian courts quote CJEU case law in their decisions in those spheres that ensure EU–​Russia trade relations. These spheres also belong to subjects of legislative 154 The Common Spaces Initiative; the Justice and Home Affairs Action Plan. 155 For instance, in 2012, a group of CJEU judges visited Moscow, where they held a series of informal meetings with Russian judges and academics. See S Feklyunin, ‘Russian Supreme Commercial Court and European Court of Justice to Cooperate’ (4 April 2012) Russian Legal Information Agency accessed 2 May  2020.

THE CJEU AND THE RUSSIAN LEGAL SYSTEM  171 approximation with EU law in Russia. The reason might lie in the fact that the European Union is the main and non-​alternative trading partner of Russia. This situation has existed for many years. Furthermore, CJEU case law is used by the courts of more developed regions of Russia. These reasons lead to the strange situation when, in spite of the current deterioration in EU–​Russia relations (in the period 2014–​18), as can be seen in Figure 7.2, the number of Russian court judgments referring to CJEU case law has been increasing. Comparing two periods (2006–​13 and 2014–​18), it is important to stress that Russian courts have already formed and have been developing established judicial practice in CJEU case law citation in their judgments. On the one hand, during the second period, the practice of CJEU case citation by Russian courts demonstrates an essential growth in the number of cases, enlarging the scope and range of the courts engaged. On the other hand, the significance of that citation for the resolution of the case is still facultative. CJEU practice is considered as a pragmatic-​ oriented example. Russian courts usually cite CJEU case law only as an example of best international judicial practice. Of course, they demonstrate that CJEU practice is the Pole Star for their decisions and, sometimes, they even apply CJEU positions, but Russian courts are still far from implementing CJEU approaches in the interpretation of law and practice. Russian courts argue from CJEU case law sporadically. There is no system or trend that allows us to conclude that there are any forms of impact in order to forestall legislative development, in order to promote free trade, or just the opposite—​ to close the Russian market. Despite the fact that Russia has adopted a law on the 18 16

No of citations

14 12 10 8 6 4 2 0

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Year No of citations

Fig 7.2  CJEU citations by Russian courts according to fields of law Source: Author’s own research from access to official and commercial databases. Note: The figure for 2018 has been adapted to account for the fact that it only relates to the first six months of 2018.

172  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES right to be forgotten and a special chapter of the Russian Labour Code is dedicated to the legal treatment of labour for athletes, it is very difficult to trace the direct impact of such CJEU cases as Google156 or Bosman on current Russian legislation. This also concerns harmonization with EU rules and standards in general. Russia has never had a special government programme for legislative approximation. As a rule, drafts of Russian laws do not contain specific references or explanations regarding approximation with EU rules. In the best cases, explanatory notes to the drafts contain only general references to ‘the International and European experience’. Consequently, in most cases deep comparative analysis between the texts of a Russian law and an EU legal act is required to find any evidence of legislative approximation in Russia.

F. Policy Recommendations The above-​presented results of the impact of CJEU case law on Russian court practice are somewhat surprising. More precisely, at first glance it is strange that such an impact exists so dramatically in Russia. On the one hand, Russian courts are not obliged to take into account CJEU decisions. Politically, as a backdrop to the crisis in EU–​Russia relations, CJEU case law quoting by Russian courts even seems paradoxical. On the other hand, nothing happens on such a scale by accident. This is a direct result of the transit from Soviet primitivism towards constructing a modern open-​for-​the-​world legal system, which Russia has tried to achieve during the past twenty-​five years. In this regard, the germ of a European legal culture in the Russian legal order is a logical outcome. Support for further spread of European legal culture in Russia is in the EU’s specific interests. Even using current selective engagement possibilities in relations with Russia, European structures could pay attention to measures aimed at promoting the development of legal education and training in EU law and CJEU case law in Russia, encouraging contacts between the Russian and European judicial communities, and expanding joint projects in the field of law and developing civil society.

156 Case C‑131/​12 Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González [2014] (ECLI:EU:C:2014:317).

8

The Impact of the Court of Justice of the European Union on the Legal System of Ukraine Roman Petrov

A.  Main Features of the Ukrainian Legal System and Judiciary Ukraine is one of the largest and most populated European countries, with some 42.4 million inhabitants and an area of 603,628 square km (including Crimea and Donbass). The economic situation in Ukraine has been gradually deteriorating since independence in 1991. Ukraine’s GDP in 2019 was 134 billion US dollars. That puts Ukraine in fifty-​seventh place in the world in this regard. Ukraine has been a World Trade Organization (WTO) member since 2008.1

1.  Transition of the Ukrainian legal system and judiciary The third largest, and one of the most industrially and agriculturally developed Soviet republics, Ukraine has always occupied a special place among its counterparts. After the Second World War, Ukraine was granted limited competence to participate in international relations through diplomatic representation in international organizations and conferences. For instance, the Ukrainian Soviet Socialist Republic (UkrSSR) (its official name before 1991) was one of the founding members of the United Nations, a member of the United Nations Educational, Scientific and Cultural Organization (UNESCO), and was a party, along with the USSR, to basic international conventions. Additionally, the UkrSSR, as well as other Soviet republics, developed its own legal system crowned by the Constitution of the UkrSSR. However, these features did not imply that the legal system of the Soviet Ukraine differed from that of the USSR. Soviet Ukraine’s legal doctrine of international law unquestionably shared the Soviet concept of the relationship between international law and municipal law, with the UkrSSR’s domestic law



1

See accessed 4 May 2020.

Roman Petrov, The Impact of the Court of Justice of the European Union on the Legal System of Ukraine In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0008.

174  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES consequently mirroring the USSR’s legal system.2 After gaining independence in 1991, and adoption of the Constitution of Ukraine in 1996, the Ukrainian courts acquired more flexibility in applying international law in their decisions. Article 9 of the Ukrainian Constitution of 1996 affirms that: International treaties that are in force, agreed to be binding by the Verkhovna Rada [Ukrainian Parliament] of Ukraine, are part of the national legislation of Ukraine. The conclusion of international treaties that contravene the Constitution of Ukraine is possible only after introducing relevant amendments to the Constitution of Ukraine.3

The Ukrainian Constitution replicates the relevant provision of the Russian Constitution with regard to the binding effect of international agreements within the national legal order, but deliberately excludes internationally recognized principles of international law as binding in the Ukrainian legal system. Therefore, it can be argued that, from a formal point of view, the Ukrainian Constitution was drafted as less receptive to the influence of international law than the Constitution of Russia. However, this gap is being constantly rectified by the Europeanization of the Ukrainian legal system, and of the Ukrainian judiciary in particular. The Europeanization of the Ukrainian legal system started shortly after independence in 1991. As a priority, Ukraine set as its political objective integration into international political and economic structures and, consequently, membership of the Council of Europe and the European Union. Once the Council of Europe set the criteria for membership, the first attempts were made to ensure conformity of legislation in the spheres of democracy and human rights. Consequently, Ukrainian criminal, penal, and social legislation underwent substantial changes, such as abolition of the death penalty and adoption of new criminal, criminal procedural, and civil procedural codes. These reforms marked the first steps in the reception of European legal standards into the developing Ukrainian legal system. Yet the Ukrainian judiciary is criticized for its reluctant application and implementation of international agreements into the country’s own legal system,4 except for cases where national lex specialis law requires, such as regular references by the Ukrainian judiciary to the case law of the European Court of Human Rights 2 See, for instance, the works of the former Soviet/​Ukrainian judge of the International Court of Justice (ICJ) Vladimir Koretskiy, Izbrannie trydy (ed Volodymyr Denisov) (Naukova Dumka 1989). 3 Full text in English available at accessed 4 May 2020. 4 This happens mainly due to (i) the belief that international case law is not relevant to civil law systems; (ii) lack of translation of international case law and jurisprudence into Ukrainian to help judges adapt their decisions to best European standards. Furthermore, the Verkhovna Rada of Ukraine is not always expedient in resolving conflicts between ratified international agreements and national legislation. See Gene Burd, ‘High Commercial Court Tramples International Agreements’ accessed 4 May  2020.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  175 (ECtHR).5 Ukrainian courts refer mainly to international agreements which are duly signed and ratified by the Ukrainian Parliament (Verkhovna Rada) and which are self-​executing within the Ukrainian legal system. Even in these cases, correct application of international agreements is not guaranteed, since one of the most important impediments for application of international law by the Ukrainian judiciary is a correct understanding of these international conventions by national judges. International and European organizations realize this problem and target their assistance towards eliminating incorrect application of international and European law by Ukrainian judges.6 This has led to the rise of judicial activism among Ukrainian judges in the ‘post-​Orange Revolution’ period, such as in the Yuschchenko case,7 where the Ukrainian Supreme Court opened the door for Ukrainian courts to apply the judgments of other international tribunals and courts.8 The ‘Maidan Revolution’/​‘Revolution of Dignity’ in 2014 galvanized further judicial reform in Ukraine, and the influx of a new generation of judges with academic and expert backgrounds. These changes encouraged better judicial activism in applying international treaties and in referring to general principles of international law and EU law.9 The Constitutional Court of Ukraine can be regarded as the largest recipient of international and European technical and expert assistance.10 Subsequently, it has proved to be the undisputed champion among other Ukrainian courts in referring to international law and universally recognized principles in its own decisions. In most cases, these references relate to the protection of constitutional rights and freedoms—​for example, freedom of association, the right to participate in public management, the right to vote and to be elected, and the right to a fair trial. The Constitutional Court of Ukraine justifies references to international legal documents by the fact that Ukraine’s ratification of fundamental international and regional conventions (in particular, the European Convention on Human Rights 5 Law of Ukraine No 3477-​IV ‘On Execution of Judgments and Application of Case Law of the European Court of Human Rights’, 23 February 2006. 6 A good example of such assistance is the project jointly funded by the EU and Council of Europe ‘Transparency and Efficiency of the Judicial System of Ukraine’, with a budget of 6 million Euro conducted between 2008 and 2011. One of the major objectives of this project was to achieve ‘Efficiency of the judicial system strengthened and quality of judicial decisions corresponding to European standards’:  accessed 4 May  2020. 7 Decision of the Supreme Court of Ukraine of 3 December 2004 Yuschenko v Central Election Committee of Ukraine. 8 Natalie Prescott, ‘Orange Revolution in Red, White, and Blue: US Impact on the 2004 Ukrainian Election’ (2006) 16 Duke J Comp & Int’l Law 219–​48. 9 Roman Petrov, ‘The Constitutional Order of Ukraine and Its Adaptability to the EU–​Ukraine Association Agreement’ in Roman Petrov and Peter Van Elsuwege (eds), Post-​Soviet Constitutions and Challenges of Regional Integration (Routledge 2017) 91‒104. 10 Judges of the Constitutional Court of Ukraine are regular visitors to international tribunals and European constitutional courts, and are participants in international and European professional and academic events. The Constitutional Court of Ukraine pursues active cooperation with the Council of Europe, the EU, the Venice Commission, and other international institutions. See accessed 4 May 2020.

176  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES (ECHR)) permits Ukrainian citizens, foreigners, and stateless persons to refer to international bodies to protect their rights in cases where they are not adequately protected by the judiciary in Ukraine. In most judgments, the Constitutional Court of Ukraine has endeavoured to interpret the Ukrainian Constitution in line with best international and European legal standards.11 However, there is still no uniformity among Ukrainian constitutional judges on the boundaries of applying international law and ECHR law in their decisions. Some judges believe that Ukrainian courts should apply ECtHR case law in line with national characteristics in order to preserve national constitutional values.12 Other judges favour more frequent and effective references to international law, and to ECHR and EU law, in order to ensure more effective protection of the constitutional freedoms of Ukrainian nationals. Furthermore, some Constitutional Court judges advocate the necessity of applying more elements of the EU acquis in their decisions, due to Ukraine’s pro-​European policies and its aspirations for EU membership.13 In most decisions taken by the Constitutional Court of Ukraine, the EU acquis is applied as a persuasive source of law. For instance, in the course of comparative analysis, the Constitutional Court referred to EC Regulation 2004/​2003 ‘on the regulations governing political parties at European level and the rules regarding their funding’,14 along with the ECHR and ECtHR case law in its ruling on the constitutionality of the Ukrainian law ‘On political parties in Ukraine’.15 Furthermore, the Constitutional Court of Ukraine referred to Directive 2000/​7816 in its ruling on the constitutionality of Ukrainian laws ‘On public service’, ‘Diplomatic service’, and ‘Local self-​governmental service’.17 It is remarkable that in both cases, the Constitutional Court did not offer any reasoning as to why it decided to refer to these particular sources of the EU acquis. One of the central questions of this study relates to the factors which encourage Ukrainian judges to apply the case law of the Court of Justice of the European 11 Mykola Selivon, ‘Harmonistsia natsionalnogo zakonodavstva z normami mizhnarodnogo prava i yogo vykorystannia Konstitutsiynym Sudom Ukraini’ (2003) 3 Vystnyk Konstitutsiynogo Sydy Ukrainy  36–​51. 12 Decision 23/​2001 of the Constitutional Court of Ukraine of 15 June 2001 (Bank Savings case). See Volodymyr Temchenko, ‘Vydnosyny mizh praktikoy ECtHR i jurisprudentsii Konstitutsiynogo Sydy Ukrainy’ (2007) 4 Vystnyk Konstitutsiynogo Sydy Ukrainy 91–​99. On the same problem encountered in the post-​accession period by constitutional courts in Central and Eastern Europe, see Anneli Albi, ‘Ironies in Human Rights Protection in the EU: Pre-​Accession Conditionality and Post-​Accession Conundrums’ (2009)15(1) ELJ 46–​69. 13 Volodymyr Kampo, ‘Konstitutsionalisatsiya zovnishnoi politiki Ukraini:  Eurointegratsionnie aspecty’ (2007) 6 Vystnyk Konstitutsiynogo Sydy Ukrainy 50–​61. 14 Regulation 2004/​2003 of the European Parliament and the Council of November 4 2003 ‘On the regulations governing political parties at European level and the rules regarding their funding’ [2003] OJ L297. 15 Decision of the Constitutional Court of Ukraine no 2/​2007 of 12 June 2007. 16 Directive 2000/​78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/​16. 17 Decision of the Constitutional Court of Ukraine no 8/​2007 of 16 October 2007 (case on the maximum retirement age for civil servants).

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  177 Union (CJEU) in their judgments. Is there any link between application of the case law of the CJEU by Ukrainian courts and EU external policies towards Ukraine? It is argued that strong contractual relations between the EU and Ukraine based on the EU–​Ukraine Association Agreement (AA) underpinned by advanced political and economic cooperation and strong conditionality play an important role in the Europeanization of the Ukrainian judiciary. The EU–​Ukraine AA (which entered into force on 1 September 2017) paved the foundation for long-​term integration of Ukraine into the political, economic, and legal spaces of the EU and inspires the Ukrainian judiciary to refer to the relevant case law of the CJEU in the process of application of the EU–​Ukraine AA.

2.  Legal framework of relations between the EU and Ukraine The EU–​ Ukraine AA replaced the outdated Partnership and Cooperation Agreement (PCA) as the basic legal framework of EU–​Ukraine relations on 27 June 2014.18 Against the political background of the ‘Orange Revolution’ in 2004–​ 05, Ukraine was the first European Neighbourhood Policy (ENP) country to start negotiations on a new Association Agreement in March 2007 as part of a general revision of the bilateral legal framework. Bilateral negotiations on the EU–​Ukraine deep and comprehensive free trade area (DCFTA) were only launched in February 2008, after Ukraine’s accession to the WTO. A political agreement was reached in December 2011 and the AA was initialled in March 2012.19 On 15 May 2013, the European Commission adopted proposals for a Council Decision on the signing and conclusion of the EU–​Ukraine AA.20 Nevertheless, this agreement was not immediately signed, due to demands by the EU to abandon the practice of selective justice (the unlawful imprisonment of opposition leader Yulia Tymoshenko between 5 August 2011 and February 2014)21 and to align the Ukrainian judiciary and law enforcement systems with European standards.22 Eventually, on the eve of the Eastern Partnership (EaP) Summit in Vilnius, the Ukrainian Government under prime minister Mykola Azarov decided to suspend the process of preparation for signature of the AA in order ‘to ensure the national security of Ukraine and to recover trade and economic relations with the Russian Federation’.23 18 EU–​Ukraine Association Agreement [2014] OJ L161 (EU–​Ukraine AA), Art 479. 19 The DCFTA part was only initiated in July 2012. 20 European Commission, ‘Signature of Association Agreement with the EU Will Depend on Ukraine’s Performance’ (2013) press release IP/​13/​436, 15 May. 21 Mark Urban, ‘The Yulia Tymoshenko Contradiction’ (10 December 2013) BBC News accessed 4 May  2020. 22 3,209th Foreign Affairs Council Meeting, Council Conclusions on Ukraine, 10 December 2012. 23 Decision of the Cabinet of Ministers N 905-​p of Ukraine of 21 November 2013 ‘On Issues related to the EU–​Ukraine Association Agreement’. Arguably, the Ukrainian government’s decision cannot be disconnected from the Russian proposal to establish a Eurasian Economic Union building upon the existing customs union between Russia, Belarus, and Kazakhstan. For the background to this initiative

178  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Following this news, hundreds of thousands of Ukrainians took to the streets. The ensuing Maidan revolution led to the dismissal of President Victor Yanukovych on 22 February 2014 and the establishment of an interim government under the leadership of Arseniy Yatsenyuk. Proceeding with the signature of the EU–​Ukraine AA was a clear, short-​term objective for the new authorities in Kyiv. Under the Ukrainian Constitution, the President is responsible for the signature of international agreements.24 After the flight of Victor Yanukovych, Ukraine only had an acting President (Olexander Turchynov), who was appointed by the Parliament without elections. Considering the legal and political significance of the AA, including long-​term and far-​reaching commitments of legislative approximation with the EU, this clearly raised some questions of legitimacy. At the same time, there was also a growing understanding that a clear message of solidarity to the Ukrainian people was needed considering mounting Russian pressure on Crimea and the Eastern part of Ukraine. In this context, the EU Heads of State or Government announced on 6 March 2014 that ‘as a matter of priority’ all the political chapters of the AA would be signed first. In addition, the adoption of autonomous trade measures ‘would allow Ukraine to benefit substantially from the advantages offered in the Deep and Comprehensive Free Trade Area’.25 The election of Petro Poroshenko to the office of President of Ukraine on 25 May 2014 made it possible to finalize the signing of the AA between the EU and Ukraine, including the part on a DCFTA. On 27 June 2014, the entire text of the EU–​Ukraine AA was solemnly signed in Brussels, along with the EU–​Moldova and EU–​Georgia AAs. A major impediment for timely entry into legal force of the EU–​Ukraine AA was caused by the results of the advisory referendum in the Netherlands on 6 April 2016 (61 per cent of votes were against ratification of the agreement). The Dutch Senate approved the Act of Ratification on 30 May 2017, after the Dutch parliamentary elections. Soon afterwards, on 1 September 2017, the EU–​Ukraine AA acquired full legal force and became part of the legal orders of the EU, its Member States, and Ukraine.26 The Council Decision on the signing and provisional application of the political provisions, adopted on 17 March 2014, combines the legal basis for EU action in the area of Common Foreign and Security Policy (CFSP) with the traditional provision on association.27 The combination of CFSP/​Treaty on the Functioning of and its implications for EU–​Ukraine relations, see Guillaume Van der Loo and Peter Van Elsuwege, ‘Competing Paths of Regional Economic Integration in the Post-​Soviet Space:  Legal and Political Dilemmas for Ukraine’ (2012) 37 RCEEL 421‒47. 24 Ukrainian Constitution of 1996 (Ukrainian Constitution), Art 106(3). 25 Statement by the Heads of State or Government on Ukraine, Brussels, 6 March 2014  accessed 4 May  2020. 26 EU–​Ukraine  AA. 27 Treaty on the EU (TEU), Arts 31(1) and 37; Treaty on the Functioning of the EU (TFEU), Art 217. See Council Decision 2014/​295/​EU of 17 March 2014.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  179 the European Union (TFEU) legal bases may be regarded as a logical consequence of the continuing bipolarity of the EU’s external action.28 The EU–​Ukraine AA is one of the first examples of this new practice, which stems from the Lisbon Treaty amendments to the procedural code for negotiating and concluding international agreements by the EU.29 Implementation and application of the AA within the legal system of Ukraine is governed by its Constitution. Provisions of the Constitution of Ukraine on application of international agreements follow the same approach, and affirm that in the case of conflict by the AA’s provisions with national legislation (excluding national Constitutions), the former prevail. Once duly ratified by the Parliament of Ukraine, the AA has become an inherent part of the Ukrainian legal system just like any other duly ratified international agreement.30 Relevant provisions of the Constitution of Ukraine imply that, on the one hand, the properly ratified AA will not only be equated to the same status as national laws but will also enjoy priority over conflicting national legislation.31 On the other hand, the AA cannot overrule conflicting provisions of the national Constitution and, therefore, does not envisage direct enforceability of international agreements in the national legal order. The Ukrainian legislature, executive, and judiciary consider that the AA is not merely an ordinary international agreement, but a complex framework legal structure that contains not only specific norms that govern the functioning of the association relations between the EU and Ukraine. The EU–​Ukraine AA also bears significant political, economic, and legal importance for Ukraine. Political elites in Ukraine consider it as a comprehensive roadmap for reforms in Ukraine.32 The impact of the EU–​Ukraine AA on the legal system of Ukraine cannot be overestimated. The AA envisages the possibility of applying the vast scope of the ‘pre-​ signature’ and ‘post-​signature’ EU acquis33 within the legal system of Ukraine. The 28 See, on this new form of mixity, Alan Dashwood, ‘The Continuing Bipolarity of EU External Action’ in Inge Govaere and others (eds), The European Union in the World. Essays in Honour of Marc Maresceau (Martinus Nijhoff 2014) 3‒16 and Stanislas Adam, ‘The Legal Basis of International Agreements of the European Union in the Post-​Lisbon Era’ in Inge Govaere and others (eds) ibid 65‒86. 29 The unified procedure for the negotiation and conclusion of international agreements by the EU is laid down in TFEU, Art 218. 30 Ukrainian Constitution, Art 9:  ‘International treaties in force, consented to by the Verkhovna Rada of Ukraine [Ukrainian Parliament] as binding, shall be an integral part of the national legislation of Ukraine. Conclusion of international treaties, contravening the Constitution of Ukraine, shall be possible only after introducing relevant amendments to the Constitution of Ukraine.’ Full text in English:  assessed 4 May  2020. 31 Law of Ukraine of 29 June 2004 no 1906-​IV ‘On International Treaties of Ukraine’, Art 19(2): ‘If a duly ratified international treaty of Ukraine contains other rules than the relevant national legal act of Ukraine, the rules of the respective international treaty should be applied.’ 32 ‘Association with EU is Roadmap for Ukraine’s Reforms, Which is Fulfilled Only by 15%—​ Poroshenko’ (20 November 2017) Interfax-​Ukraine accessed 4 May 2020. 33 For more on application of the ‘pre-​signature’ and ‘post-​signature’ EU acquis in EU external agreements, see Roman Petrov Exporting the acquis communautaire through EU External Agreements (NOMOS 2011).

180  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES scope of the EU acquis to be applied by Ukraine covers not only primary and secondary EU laws, but also EU legal principles, common values, and even case law of the CJEU, as well as specific methods of interpretation of the relevant EU acquis within the Ukrainian legal system. Hitherto, the Ukrainian legal system has not faced the necessity to implement and to effectively apply the dynamic legal heritage of an international supranational organization.34 Subsequently, adherence of Ukraine to the dynamic EU acquis via the AA will encapsulate a plethora of challenges to its national legal order. One of the serious challenges to be faced by the Ukrainian legal system is reluctance by the domestic judiciary to apply and effectively implement international law sources in their own judgments.35 In practice, the Ukrainian courts refer mainly to international agreements which are duly signed and ratified by their national parliament and which are self-​executing within the Ukrainian legal system. Even in these cases, correct application of international agreements is not guaranteed. This happens because, as noted in 1. ‘Transition of the Ukrainian legal system and judiciary’ above, one of the most important impediments for the application of international law by the Ukrainian judiciary is the correct understanding of these international conventions by national judges. Application of the AA by the Ukrainian judiciary will increase through growing familiarity with the AA and the EU legal order, as well as due to claims by Ukrainian nationals based on provisions of the AA and the EU acquis.36 The objective of effective implementation and application of the AA may be achieved by issuing a special implementation law that will clarify all potential conflicts of provisions of this agreement with Ukrainian legislative acts. For example, Ukraine has already gained some experience in ensuring implementation and application of the ECHR, which Ukraine ratified in 1997. Ratification of the ECHR by Ukraine took place by means of two laws. The first of these was the law on ratification of the ECHR, wherein Ukraine recognized the jurisdiction of the ECtHR.37 The second was a special law on the application of case law of the ECtHR 34 Maybe with the exception of application of the EU sectoral ‘energy’ acquis under the framework of the Energy Community, which Ukraine joined in 2010. See Roman Petrov, ‘Energy Community as a Promoter of the European Union’s ‘Energy acquis’ to Its Neighbourhood’ (2012) 38(3) Leg Issues Econ Integrat 331‒35. 35 Roman Petrov and Paul Kalinichenko, ‘The Europeanization of Third Country Judiciaries through the Application of the EU acquis: The Cases of Russia and Ukraine’ (2011) 60 ICLQ 325‒53. This happens mainly due to: (i) the belief that international case law is not relevant to civil law systems; (ii) the translation of case law and jurisprudence; and (iii) lack of translation of case law into Ukrainian to help judges adapt their decisions to best European standards. Furthermore, the Verkhovna Rada of Ukraine is not always expedient in resolving conflicts between ratified international agreements and national legislation. 36 For more on judicial activism and voluntary application of the EU acquis in the eastern neighbouring countries, see Peter Van Elsuwege and Roman Petrov, Legislative Approximation of EU Law in the Eastern Neighbourhood of the EU: Towards a Common Regulatory Space? (Routledge 2014). 37 Law of Ukraine no 475/​97-​BP ‘On Ratification of the European Convention on Human Rights 1950, First Protocol and Protocols No 2, 4, 7 and 11’ of 17 July 1997.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  181 in Ukraine, which imposed on Ukraine a duty of mandatory and timely execution of all Ukraine-​related ECtHR judgments.38 In accordance with these laws, judgments of the ECtHR are being formally accepted by the national judiciary as sources of law, and Ukrainian judges frequently refer to ECtHR judgments in their decisions. However, the rate of effective application of ECtHR case law in Ukraine is considered as unsatisfactory and lags far behind other European countries.39 Article 474 of the EU–​Ukraine AA affirms that ‘Ukraine will carry out gradual approximation of its legislation to EU law’, as referred to in no less than forty-​four annexes to the agreement and based on specific commitments and mechanisms identified in both the annexes and specific titles to the agreement. Separate approximation clauses can be found in Title IV of the DCFTA, Title V on Economic and Sector Cooperation, and Title VI on Financial Cooperation. Other EU–​ Ukraine AA Titles contain rather general provisions referring to international conventions or ‘European and international standards’40 and cannot be considered as approximation clauses sensu stricto because no clear obligation is imposed to incorporate EU legislation. They all contain the same approximation clause, according to which ‘Ukraine shall ensure that its existing laws and future legislation will be gradually made compatible with the EU acquis’.41 These are the only provisions in the AA explicitly obliging Ukraine to approximate its ‘future’ legislation to the EU acquis. The EU–​Ukraine AA includes a highly complex and sophisticated patchwork of legislative approximation mechanisms which differ from other existing models of integration without membership. First, in comparison to the multilateral sectoralism of the Energy Community (EnC) Treaty and the European Common Aviation Area (ECAA), the EU–​Ukraine AA incorporates several different sectoral approximation mechanisms in a single legal instrument. Second, the various legislative approximation mechanisms included in the EU–​Ukraine AA differ in scope and nature, depending on the envisaged level of integration and market opening. Only in those areas where full internal market treatment is foreseen, such as in services and establishment, is the arrangement comparable to the mechanism for legislative approximation under the European Economic Area (EEA) Agreement. Third, in comparison to the EEA model, the EU–​Ukraine arrangement for legislative approximation does not envisage creation of a homogenous and dynamic legal space. Rather, it offers an alternative model, based on strict market access conditionality.42 38 Law of Ukraine no 3477-​IV (n 5). 39 See Twelfth Annual Report of the Committee of Ministers ‘Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights’ in 2018  accessed 4 May 2020. 40 EU–​Ukraine AA, Art 15. 41 ibid Arts 114, 124, 133, and 138, respectively. The latter has, however, a slightly more nuanced formulation. 42 When comparing the EU–​Ukraine AA with the EEA, it should be noted that the latter is ‘an international treaty sui generis, which contains a distinct legal order of its own [and which] goes beyond

182  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES For instance, in the Title on Economic and Sector Cooperation, most chapters share a similar ‘standard approximation clause’ that affirms Ukraine’s commitment to gradually approximate its legislation to the EU acquis, as set out in the annex to the chapter concerned.43 Each of these annexes provides a list of specific EU legislation and a timetable for approximation.44 Even though the annexes state that Ukraine only ‘undertakes’ to gradually approximate to the selected EU legislation, they set a strict deadline against which selection of the EU acquis ‘shall be implemented’.45 Other approximation clauses in this title are less ambitious, as they do not list a selection of EU acquis in an annex46 or because they lack a firm binding obligation to approximate.47 The most elaborate approximation clauses can be found in Title IV on establishment of the DCFTA. In several DCFTA Chapters, the process of legislative approximation is clearly linked to additional access to the EU Internal Market. For example, in the area of technical barriers to trade,48 Ukraine must ‘incorporate the relevant EU acquis’ in line with the timetable set out in Annex III. Similarly, in the area of Sanitary and Phytosanitary Measures (SPS), Ukraine ‘shall’ approximate its sanitary, phytosanitary, and animal welfare legislation to that of the EU, as set out in Annex V.49 The most detailed provisions on legislative approximation are included in DCFTA Chapter  6 on Services, Establishment and Electronic Commerce, more specifically in its subsections on Postal and Courier Services, Electronic Communications, Financial Services, and International Maritime Transport Services.50 These all contain the same approximation clause, according to which ‘Ukraine shall ensure that its existing laws and future legislation will be gradually made compatible with the EU acquis’.51 These are the only provisions in the AA what is usual for an agreement under public international law’ (EFTA Court, Case E-​9/​97 Erla Maria Sveinbjörnsdòttir v Government of Iceland 1998, para 95). 43 Also Title VI on Financial cooperation contains such a standard approximation clause (EU–​ Ukraine AA, Art 459). 44 Chapter 4 Taxation (Art 353—​Annex XXVIII), Ch 6 Environment (Art 363—​Annex XXIX), Ch 7 Transport (Art 368—​Annex XXXI), Ch 13 Company Law, Corporate Governance, Accounting and Auditing (Art 387—​Annex XXXIV and XXXV), Ch 15 Audio Visual Policy (Art 397—​Annex XXXVII), Ch 20 Consumer Protection (Art 417—​Annex XXXVIII), Ch 21 Cooperation on Employment, Social Policy and Equal Opportunities (Art 424—​Annex XXXIX), and Ch 22 Public Health (Art 428—​Annex XL). The approximation clauses of Ch 12 Financial Services (Article 385)  and Ch 14 Information Society (Art 394) make a cross reference to DCFTA Ch 6 on Establishment, Trade in Services and Electronic Commerce. 45 See n 44. 46 Chapter  9 Cooperation in Science and Technology (EU–​Ukraine AA. Art 375(1)) and Ch 18 Fisheries and Maritime Policy (EU–​Ukraine AA, Art 410). 47 For instance, EU–​Ukraine AA, Art 405 on Agriculture and Rural Development states that the Parties shall ‘support’ gradual approximation to EU legislation; see also EU–​Ukraine AA, Arts 410 and 435 for similar non-​binding approximation clauses. 48 Chapter 3 DCFTA, EU–​Ukraine AA, Title IV. 49 EU–​Ukraine AA, Art 64(1). 50 These subsections, respectively subsections 4‒7, are part of Section 5 ‘Regulatory Framework’. 51 EU–​Ukraine AA, Arts 114, 124, 133, and 138, respectively.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  183 explicitly obliging Ukraine also to approximate its ‘future’ legislation to the EU acquis. Annex XVII52 contains ‘General principles and obligations’ on legislative approximation. This determines how the listed EU legislation will be made binding upon the Parties and ‘made part of Ukraine’s internal legal order’.53 Reflecting—​but not copying—​Article 288 TFEU, Article 2 of this Annex specifies that an act in this Annex corresponding to an EU Regulation or Decision ‘shall as such be made part of the internal legal order of Ukraine’, whereas an act corresponding to an EU Directive ‘shall leave to the authorities of Ukraine the choice of form and method of implementation’.54 This provision only appears in a limited number of integration agreements, and was first used in the EEA Agreement.55 Significantly, the DCFTA part of the AA also includes a unique inter-​ governmental dispute settlement mechanism (DSM) relating to legislative approximation. This procedure only applies to disputes concerning the interpretation and application of provisions relating to legislative approximation in a limited number of DCFTA Chapters, ‘or which otherwise imposes upon a Party an obligation defined by reference to a provision of EU law’.56 If a dispute between the EU and the Ukraine in relation to one of those chapters concerns a question of interpretation of a provision of EU law, the arbitration panel established to resolve the dispute will not decide the question, ‘but request the Court of Justice of the European Union to give a ruling on the question’, which will be binding on the arbitration panel.57 This provision is unique in the sense that in no other agreement, concluded by the EU is the EU–​Ukraine arbitration panel given the competence to seek a preliminary ruling from the CJEU. In only a limited number of other EU integration agreements can the CJEU respond to preliminary questions from a national court or tribunal.58 The procedure under Article 322 EU–​Ukraine AA is crucial to preserving the CJEU’s exclusive jurisdiction to interpret the EU acquis.59 It is settled case law that the EU and its Member States are not bound by a particular interpretation of rules of 52 ibid Appendix XVII-​2–​XVII-​5. 53 ibid Art 2 Annex XVII. 54 In the EU, a Regulation is ‘directly applicable’ in all Member States, whereas acts listed in the Annex corresponding to an EU Regulation (or Decision) ‘must be made part’ of Ukraine’s legal order, which means that the act still has to be transposed into Ukraine’s legal system. 55 European Economic Area Agreement (OJ L01 1994) Art 7; see also European Common Aviation Area Agreement (OJ L285 2006) Art 3. 56 EU–​Ukraine AA, Art 322. The Chapters of the EU–​Ukraine AA are Technical Barriers to Trade (Ch 3), Sanitary and Phytosanitary Measures (Ch 4), Customs and Trade Facilitation (Ch 5), Establishment, Trade in Services and Electronic Commerce (Ch 6), Public Procurement (Ch 8), and Competition (Ch 10). 57 EU–​Ukraine AA, Art 322(2). 58 For instance, EEA Agreement, Art 107 and Protocol 34; also, the ECAA Agreement, inspired by the EEA model, foresees, under certain conditions, the possibility for national courts or tribunals of the ECAA Partners to ask the CJEU for a preliminary ruling (see ECAA, Art 16(2) and Annex IV). 59 TEU, Art 19. For analysis, see Inge Govaere, ‘Beware of the Trojan Horse:  Dispute Settlement in (Mixed) Agreements and the Autonomy of the EU Legal Order’ in Christoph Hillion and Panos Koutrakos (eds), Mixed Agreements Revisited (Hart 2010) 192‒99.

184  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES EU law referred to in an agreement which ‘extends’ the EU acquis to third countries such as the EEA and the ECAA.60 In Opinion 1/​91 on the draft EEA Agreement, the Court of Justice also clarified that interpretation of EU rules cannot be entrusted to bodies created on the basis of international agreements.61 In order to avoid a repetition of the EEA saga, Article 322 EU–​Ukraine AA precludes the arbitration panel from issuing a binding ruling on interpretation of the agreement’s provisions, which are essentially rules of EU law by delegating disputes on ‘a question of interpretation of a provision of EU law’ to the CJEU by means of a preliminary ruling.62 In addition to this preliminary ruling procedure, the EU–​Ukraine AA includes specific provisions guaranteeing uniform interpretation of legal norms. It is well known that similar provisions in international agreements and in EU law do not automatically have the same meaning, but that the objective, purpose, and context of the agreement needs to be taken into account.63 Of course, the situation is different when express provisions on identical interpretation are laid down in an agreement itself.64 It is noteworthy that several DCFTA Chapters contain such explicit provisions. The most straightforward obligation can be found, somewhat hidden, in the annex to the Services and Establishment Chapter. Article 6 of Annex XVII states that: [i]‌nsofar as the provisions of this Annex and the applicable provisions specified in the Appendices are identical in substance to corresponding [EU provisions], those provisions shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Union.

Such a provision is also incorporated in other agreements, such as the EEA Agreement. However, Article 6 EEA Agreement only refers to case law developed prior to signature of the EEA Agreement. With regard to post-​signature case law, Article 105(3) EEA Agreement affirms that: [t]‌he EEA Joint Committee shall keep under constant review the development of the case-​law of the Court of Justice of the European Communities and the EFTA 60 Opinion 1/​ 00, Opinion pursuant to Article 300(6) EC—​ Proposed agreement between the European Community and non-​Member States on the establishment of a European Common Aviation Area [2002] (ECL1:EU:C:2002:231), paras 3 and 11. 61 Opinion 1/​91, Opinion delivered pursuant to the second subparagraph of Art 228 (1)  of the Treaty—​Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area [1991] [ECL1:EU:C:1991:490), para 42. 62 However, due to the absence of the homogeneity objective in the AA, the arbitration panel, even in the absence of Art 322, would be able to rule only on AA provisions which are textually identical to provisions of EU law, and not on EU law as such. The inclusion of the homogeneity objective would have made it impossible to dissociate the AA provisions from identical provisions of EU law (Opinion 1/​91 (n 61) para 45). 63 Opinion 1/​91 (n 61) para 14; see also Case 270/​80 Polydor v Harlequin [1982] ECR 329, paras 15‒19. 64 Case C-​351/​08 Christian Grimme v Deutsche Angestellten-​Krankenkasse [2009] ECR 10777, para 29; Case C-​547/​10 Swiss Confederation v European Commission [2010] ECR II-​4265, para 80.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  185 Court. To this end judgments of these Courts shall be transmitted to the EEA Joint Committee which shall act so as to preserve the homogeneous interpretation of the Agreement.65

Article 322 EU–​Ukraine AA does not draw such a distinction between pre-​ signature and post-​signature case law.66 Of course, another major difference with the EEA Agreement is that in the case of the EU–​Ukraine AA this obligation of consistent interpretation only applies to a specific DCFTA Chapter, and not to the entire agreement.67 To sum up, the objective of implementing the EU–​Ukraine AA encourages the Ukrainian legal system to ‘export’ the substantive scope of the EU relevant acquis. For this purpose, the EU–​Ukraine AA contains extensive approximation clauses that oblige Ukraine to approximate not only relevant, but also ‘future’ legislation to the EU acquis. Some of the approximation clauses resemble the ‘homogeneity approximation procedure’ envisaged in the EEA. Furthermore, the EU–​Ukraine AA considers a unique possibility to refer to the CJEU to seek interpretation of any provision of the AA that replicates the relevant EU acquis.

3.  Structure and background of the Ukrainian judiciary In order to meet the objectives of the AA, the Ukrainian Parliament (Verkhovna Rada) launched a fundamental judicial reform by adopting several laws on 2 June 2016.68 These laws entered into force by the end of 2016 and contributed to the objectives of transforming the outdated and corrupt Ukrainian judicial system, of

65 Art 3(2) of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and Court of Justice further states that in the interpretation and application of the EEA Agreement, the EFTA Surveillance Authority and Court ‘shall pay due account’ to the principles laid down by the relevant rulings of the Court of Justice given after the date of signature of the EEA Agreement. Moreover, the EFTA Court confirmed that in practice, in order to maintain a homogeneous EEA, it has ‘consistently taken into account the relevant rulings of the CJEU [Court of Justice] given after [the date if signature]’, thereby de facto eliminating the temporal limit of EEA, Art 6 (EFTA Court, Joined cases E-​9/​07 and E-​10/​07 L’Oréal [2008] EFTA Ct REP 258, para 28). 66 Other examples of similar provisions which also make a difference between pre-​and post-​ signature case law are EU–​Switzerland Agreement, Art 16 ECAA and Art 16(2) on the free movement of persons ([2002] OJ L114/​6). An example of an integration agreement which does not draw this distinction is the EU–​Georgia Aviation Agreement, Art 21(5) ([2012] OJ L321/​3). 67 Two other DCFTA Chapters contain a similar provision on Court of Justice case law-​conforming interpretation (ie Public Procurement and Competition), but without the same strict obligation. Ukraine must respectively take ‘due account’ of (Art 153(2)) or use ‘as sources of inspiration’ (Art 264) the relevant case law of the Court of Justice. 68 Law of Ukraine no 1401-​VIII on Amendments to the Constitution of Ukraine; Law on the Judicial System and the Status of Judges; and Law on the Bodies and Persons Involved in the Enforcement of Judgments and Decisions of Other Bodies, 2 June 2016.

186  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES promoting its efficiency and transparency, and of raising professional and ethical standards for Ukrainian judges. The new laws on the judicial system replaced the four-​instance system of courts of general jurisdiction, commercial, and administrative, dealing with criminal and civil cases, consisting of: (i) courts of first instance; (ii) courts of appeal; (iii) cassation courts (the Supreme Specialised Court on Civil and Criminal Cases, the Supreme Commercial Court, and the Supreme Administrative Court); and (iv) the Supreme Court of Ukraine (Figure 8.1).69 The Supreme Court of Ukraine was assigned a new role and can act as a cassation court, but in certain cases also as a court of first instance or a court of appeal. According to the new structure, the Supreme Court of Ukraine consists of:  (i) the Grand Chamber of the Supreme Court of Ukraine; (ii) the Cassation Administrative Court; (iii) the Cassation Commercial Court; (iv) the Cassation Criminal Court; and (v) the Cassation Civil Court. Like other cassation courts under the Supreme Court of Ukraine, the Cassation Commercial Court has specialized chambers to consider different categories of dispute. In particular, it, inter alia, includes the chamber for cases related to protection of intellectual property rights and competition. Therefore, under the new law on the judicial system, the previously operating specialized cassation courts of third instance were be abolished and transformed into autonomous chambers under the auspices of the new Supreme Court of Ukraine. This reform did not affect the Constitutional Court of Ukraine, which

PREVIOUS

NEW

SUPREME COURT Civil Court of Cassation High Court on civil and criminal cases

High Administrative Court

SUPREME COURT Commercial Administrative Criminal Court Grand Court of Court of of Cassation Chamber Cassation Cassation

High Commercial Court Courts of Appeal

Courts of Appeal Local courts Local Courts

Fig 8.1  Reform of the judicial system of Ukraine Source:  accessed 2 June 2020.

69 The new Supreme Court of Ukraine considers cases under a limited number of circumstances, such as: (i) inconsistent application of the provisions of the substantive and/​or procedural laws by the cassation courts; (ii) violation of Ukraine’s obligations under international treaties, established by an international judicial institution recognized by Ukraine; (iii) inconsistency between the rulings of the cassation courts and the rulings of the Supreme Court of Ukraine in application of substantive law.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  187 remains intact and occupies the place of the highest court of constitutional jurisdiction in the country.70 The objective of the reform is to enhance the efficiency and transparency of the judicial system in Ukraine, as well as to ensure its independence from political elites. The new law on the judicial system also envisages creation of specialized courts to hear cases related to intellectual property rights and corruption: the High Intellectual Property Court (not launched yet) and the High Anti-​Corruption Court (launched on 5 September 2019). These specialized High Courts act as courts of first instance, having jurisdiction over IP-​related disputes and corruption cases. These courts are supreme over local relevant courts. Their decisions will be reviewed by the Supreme Court of Ukraine. Competition cases remain under the jurisdiction of specialized commercial courts. The system of legal representation before the courts will also change after implementation of the reform, as under the Law on Amendments to the Constitution, only attorneys-​at-​law are eligible to represent clients before the courts. The transitional provisions of this law provide for step-​by-​step implementation of these changes, starting with obligatory representation by attorneys-​at-​law before the Supreme Court from 1 January 2017, and before courts of all three instances from 1 January 2019. Other important changes expected to have a positive impact on enforcement of intellectual property rights in Ukraine relate to reform of the system for enforcing court judgments, in that the new enforcement law introduces private enforcement officials (‘private bailiffs’) and other mechanisms allowing rights holders to exercise better control over enforcement procedures.

4.  Precedents and models of judicial reasoning in the Ukrainian judiciary Ukrainian judges follow judicial reasoning that is inherent to countries of the continental legal systems. This means that Ukrainian judges prefer to build their argumentation on analysis of legal norms and provisions relevant to the facts of the case. Precedents are not considered as a source of law within the Ukrainian legal system. Therefore, only a few Ukrainian judges refer to legal and judicial precedents in their judgments. There are several reasons for this. First is the excessive workload of the Ukrainian judiciary. Independent studies indicate the span of workload of each Ukrainian court of first instance to be from 7,100 cases yearly to 3,500 cases yearly.71 Second is the unsatisfactory training of the Ukrainian judiciary. Most references 70 The amendments to the Law ‘On the Constitutional Court of Ukraine’ no 2147-​VIII of 3 November 2017 and no 2509-​VIII of 12 July 2018 have not changed the competence and structure of the Constitutional Court of Ukraine, but extended its jurisdiction to cover claims by nationals (constitutyna skarga). 71 See accessed 4 May  2020.

188  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES to international law sources and case law of international courts have been made mainly by judges with a considerable academic background. Nevertheless, because the decisions of the ECtHR are formally considered as a source of law for the Ukrainian legal system,72 judgments of the Ukrainian courts contain frequent references to the case law of the ECtHR, especially since the ‘EuroMaidan’ revolution in 2014. Ukrainian judges are regularly trained and briefed on the contemporary case law of the ECtHR, and so are being encouraged to apply consistent and coherent references to the relevant ECtHR case law in their judgments. Judges of common courts and specialized courts, as well as of the Constitutional Court of Ukraine, are eligible to issue concurring opinions. However, this procedural tool is not very common in Ukrainian jurisprudence.

5.  Use of foreign and international law by the Ukrainian judiciary The Ukrainian judiciary already occasionally referred to fundamental principles of EU law and some elements of the EU acquis, as well as to case law of the CJEU before the signature of the EU–​Ukraine AA.73 A combination of external and internal factors may explain this observation. First, since 2004, Ukraine’s pro-​European foreign policy has been underpinned by a national programme for approximating Ukrainian legislation to EU law. This served as very important encouragement for a few Ukrainian judges with expertise in EU law to refer to relevant EU acquis in their decisions. Second, the EU has been offering result-​ oriented, technical, and financial support to the Ukrainian judiciary. This support brought about significant internal institutional reforms within the Ukrainian judiciary, such as establishment of the system of administrative courts. Ukrainian administrative judges have pioneered, and are still among the leaders in application of the EU acquis within the Ukrainian judiciary.74 A third factor was the increased transparency of the Ukrainian judiciary. The national registry of Ukrainian case law was launched in 2006 and found positive feedback among the Ukrainian legal community. Judges and lawyers were regularly informed about developments in EU law via workshops and courses in Ukrainian legal higher education institutions. The law ‘On the All State Programme on adaptation of Ukrainian legislation to EU laws’ of 2004 encouraged the Ukrainian judiciary to use the EU acquis as an important source of reference.75 This law, which is already 72 Law of Ukraine no 3477-​IV (n 5). 73 Roman Petrov, ‘Regulatory Convergence and Application of EU Law in Ukraine’ in Van Elsuwege and Petrov (n 36) 137‒58. 74 ibid. 75 Law of the Verkhovna Rada of Ukraine no 1629-​IV of 18 March 2004  ‘About the All State Programme of adaptation of Ukrainian legislation to that of the EU’.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  189 outdated today, envisages export of the whole ‘accession acquis’ into Ukraine’s legal system.76

6.  Evolution of practice by the Ukrainian judiciary in citing CJEU case law There is no formal requirement for Ukrainian judges to possess general knowledge on the foundations of EU law and CJEU case law. Nor are Ukrainian judges required to be fluent in any of the EU’s official languages. Nevertheless, Ukrainian judges are being encouraged to be so. First, they are obliged to study—​and to apply in their judgments—​relevant case law of the ECtHR. Though ever more ECtHR decisions are being translated into Ukrainian, it is important for Ukrainian judges to read them in their original language. Second, Ukrainian judges take part in numerous expert meetings and training courses, wherein they are introduced to the most contemporary ECtHR and CJEU judgments that are relevant for Ukraine.77 Third, a new generation of Ukrainian lawyers who assist judges are being trained in the foundations of EU law, which is a mandatory part of the law curriculum in many Ukrainian law faculties. There is a long track record of applying the EU acquis by the Ukrainian judiciary (including the Constitutional Court of Ukraine) as a persuasive source of law before signature of the EU–​Ukraine AA. For example, the Ukrainian courts recognized the priority of the EU–​Ukraine AA’s predecessor (the EU–​Ukraine PCA) over conflicting provisions of national law.78 Furthermore, in cases relating to state liability, the Ukrainian administrative courts have imported from the EU legal system the concept of legal certainty, previously unknown to the Ukrainian legal system. For example, in Person v Kiev City Centre for Social Assistance,79 the Administrative Court of the Kiev District affirmed that the rights of the disabled

76 The main objective of this law is ‘alignment of Ukrainian legislation with the acquis communautaire, taking into consideration criteria specified by the EU towards countries willing to join the EU’. 77 The EU Delegation in Ukraine, the Council of Europe Office in Ukraine, and embassies of some EU Member States support and sponsor regular training on CJEU and ECtHR case law for the Ukrainian judiciary; eg case law of the CJEU relevant for the application and implementation of the EU–​Ukraine AA was summarized and translated into Ukrainian under the EU-​funded project ‘Association4U’:  accessed 4 May 2020. 78 Judgment no 12/​267 of the High Commercial Court of Ukraine of 2 February 2005 Kamaz-​ Trans-​Servis v Ryvne Customs Office; Judgment no 7/​299 of the High Commercial Court of Ukraine on 25 March 2005 Closed Stock Company ‘Chumak’ v Kherson Custom Office; Judgment no 18/​303 of the High Commercial Court of Ukraine of 22 February 2005 ‘Odek’ LTD v Ryvne Custom Office. 79 Judgment no 2/​416 of the District Administrative Court of Kiev of 25 November 2008 Person v Kiev City Centre for Social Assistance. Apparently, this judgment set a pattern for subsequent decisions Person v Kiev City Centre for Social Assistance by Ukrainian administrative judges; see Judgment no 5/​ 503 of the District Administrative Court of Kiev of 24 November 2008; Judgment no 5/​451 of the District Administrative Court of Kiev of 1 December 2008; Judgment no 5/​435 of District Administrative Court of Kiev of 10 November 2008.

190  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES to claim social and financial assistance from the State flow from the principle of legal certainty. This means that a state cannot justify its failure to guarantee constitutional rights by the absence of a specific national law. For this purpose, the Administrative Court of the Kiev District referred to the CJEU judgment in van Duyn v Home Office,80 which confirms that nationals may rely on the state’s obligations, even in cases when these obligations are provided in law without direct effect. Furthermore, the Ukrainian courts developed the principle of legitimate expectations in the case of Person v Darnitsa District of Kiev Centre for Social Assistance,81 concerning the rights to benefits of those who took part in the operation during the Chernobyl catastrophe. The Kiev District Administrative Court ruled that the principle of state liability to offer compensation to those involved in the Chernobyl disaster flows from the van Duyn v Home Office case. In particular, the Administrative Court of the Kiev District stated that if the state formally acknowledged its commitment to offer compensation to those involved in the Chernobyl disaster, it could not refer to its own failure to fulfil its commitments in order to avoid liability before its own nationals (in this case, it was failure to issue a relevant legal act by the competent state authorities), which would also violate the legitimate expectations of Ukrainian nationals. Such bold judicial activism by administrative judges, previously unknown in a post-​Soviet legal system, was not welcomed by all representatives of the Ukrainian establishment. The government of Ukraine under President Yanukovich questioned the case law of the administrative courts related to compensation to those involved in the Chernobyl disaster in the Constitutional Court of Ukraine. In its judgment of 25 January 2012, the Constitutional Court overruled the established case law of the administrative courts on the ground that social support for Ukrainian nationals guaranteed by the Constitution of Ukraine must be provided in line with the financial capacities of the state in accordance with the principles of proportionality and justice.82 The Constitutional Court did not consider the relevance of the principle of legal certainty at all but referred to selected decisions of the ECtHR in justification of its own position. This controversial decision by the Constitutional Court was widely criticized by the expert community in Ukraine and even by some judges of the Constitutional Court in their dissenting opinions for lack of reasoning, a pro-​governmental position, and misleading references to the case law of the ECtHR.83 The situation became even worse when the Highest Disciplinary Body for judges in Ukraine opened disciplinary proceedings against an administrative judge who referred to the case law of the CJEU in decisions related to compensation for those involved in the Chernobyl disaster. 80 Case 41/​74 van Duyn v Home Office [1974] ECLI:EU:C:1974:133. 81 Judgment no 4/​337 of the District Administrative Court of Kiev of 26 June 2008. 82 Case 1-​11/​2012 Decision of the Constitutional Court of Ukraine of 23 January 2012. 83 See Case 1-​11/​2012 Dissenting Opinion of Shishkin J of the Constitutional Court in Decision of the Constitutional Court of 23 January 2012.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  191 The disciplinary proceedings against this judge took place in 2013, on the eve of the refusal by President Yanukovich to sign the EU–​Ukraine AA at the Eastern Partnership summit in Vilnius in December 2013. However, the disciplinary proceedings were cancelled just after the ‘EuroMaidan revolution’ in February 2014. Further dramatic political events in Ukraine and the Maidan Revolution in 2013‒14, which led to the signature of the EU–​Ukraine AA in June 2014, reinvigorated the debate over application of the EU acquis and case law of the CJEU by the Ukrainian judiciary. At the end of 2014, the High Administrative Court decided to intervene and to fill this gap in a traditional way for post-​Soviet courts—​to issue an informational non-​binding letter to all administrative judges in Ukraine.84 Therein the High Administrative Court of Ukraine stated that EU founding treaties do not bind Ukraine and, therefore, EU law and the case law of the CJEU cannot be considered as part of the Ukrainian legal system.85 The High Administrative Court confirmed that: legal positions as they are formalised in decisions of the CJEU can be taken into consideration by administrative courts as argumentation, reflection regarding harmonious interpretation of Ukrainian legislation in line with established standards of the EU legal system, but not as a legal basis (source of law) of a situation that caused a legal dispute.86

This statement by the High Administrative Court of Ukraine played a dubious role. On the one hand, it repudiated any formal grounds for Ukrainian judges to apply various sources of the EU acquis in their decisions. On the other hand, it gave the green light for Ukrainian judges to refer to general principles, doctrines, and case law of the CJEU as a persuasive source of interpretation in their decisions. Unfortunately, the High Administrative Court did not go further, and kept silent on issues of application of the EU acquis referred to in the text of the EU–​Ukraine AA and of binding decisions of the EU–​Ukraine Association Council. Ironically, the constitutional amendments of 2016 envisage abolition of the system of highly specialized courts in Ukraine, thereby undermining the value of this information letter from the High Administrative Court of Ukraine for the Ukrainian judiciary. Beyond any expectation, the clarification by the High Administrative Court of Ukraine on application of CJEU case law found wide support among judges of common and administrative courts in Ukraine. In the period 2015‒19, Ukrainian general, specialized, and high courts referred to the EU–​Ukraine AA and case law of the CJEU in dozens of their decisions. Detailed information on the case law of

84 Informational Letter of the High Administrative Court of Ukraine of 18 November 2014 no 1601/​ 11/​10/​14-​14. 85 Law of the Verkhovna Rada of Ukraine no 1629-​IV (n 75). 86 Petrov, ‘Regulatory Convergence’ (n 73).

192  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES the Ukrainian judiciary is public, and can be accessed at the portal of the Register of judicial decisions.87 This register covers decisions of all Ukrainian courts except for the Constitutional Court of Ukraine, which possesses its own database.88 For example, analysis of decisions by Ukrainian courts issued in 2014‒19 shows a significant rise in references to the EU–​Ukraine AA and to various sources of the EU acquis (fundamental principles, secondary acts, and case law of the CJEU). In most cases, Ukrainian judges who already possess considerable experience and knowledge in application of the ECHR and case law of the ECtHR strengthened their argumentation with frequent references to the EU acquis and the EU–​ Ukraine AA. For instance, since 2015 most decisions by administrative courts on rights of pensioners include a standard statement that the court is applying the principle of rule of law in line with the case law of the ECtHR and the CJEU. Therein, Ukrainian judges cite the information letter of the High Administrative Court of Ukraine on taking into account the case law of the CJEU as a source of argumentation concerning harmonious interpretation of Ukrainian law with the EU acquis.89 Some judges have gone even further and considered the entry into force of the EU–​Ukraine AA in Ukraine as an obligation to apply EU common values in Ukraine.90 References to the EU–​Ukraine AA and relevant EU acquis have found application in cases regarding Ukrainian natural persons and companies who claimed the direct effect of these provisions in cases concerning payment of customs duties when crossing the Ukrainian border;91 supply of and trade in natural gas;92 definition of the origin of goods (honey);93 or the legality of legislative drafts by the President of Ukraine.94 However, the Ukrainian courts have not yet recognized (or mainly avoided the recognition of) the direct effect of provisions of the EU–​Ukraine AA in their decisions. The issue of direct effect of the EU–​Ukraine AA may find relevance in case of possible litigation on the correspondence of Ukrainian laws and other legal acts to the objectives, principles, 87 See accessed 4 May 2020. 88 Decisions and acts of the Constitutional Court of Ukraine can be accessed at accessed 4 May 2020. 89 For instance, Judgment no 750/​5197/​16-​a of the District Court of the city of Chernigyv of 26 June 2016. 90 For instance, the Judgment no 346/​3499/​16-​c of the Interdistrict Court of the City of Kolomya of 7 July 2016 contains a rather emotional passage: The Court notes that after the signing of the Association Agreement with the European Union by the President of our country, and after ratification by the supreme legislative body (the Verkhovna Rada of Ukraine), Ukraine, as a state aspiring to full membership in the EU, must respect the private property rights of every person as a basic tenet and a cornerstone of European values and inviolable foundation of the EU, which must by complied with by all Member States and by associated countries. 91 Judgment no 33/​783/​241/​16 of the Appellate Court of the region of Lviv of 6 April 2016. 92 Judgment no 826/​594/​16 of the District Administrative Court of the city of Kiev of 13 April 2016. 93 Judgment no 664/​906/​16-​c of the District Court of the city of Tsyrypinsk of 29 April 2016. 94 Judgment no 800/​251/​16 of the High Administrative Court of Ukraine of 26 April 2016.

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  193 and ‘essential elements’ of the EU–​Ukraine AA before the Constitutional Court and general courts. Among the most recent examples are the Executive Order of the President of Ukraine on banning Russian social networks (due to national security and sanctions against the Russian Federation caused by the annexation of Crimea in 2014 and military aggression in Eastern Ukraine)95 and the Law of Ukraine on banning the St George (Guards’) Ribbon (as propaganda for Russian military aggression in Eastern Ukraine).96 These legislative acts raise some concerns regarding their compliance with the objectives of the EU–​Ukraine AA, in general, and freedom of expression and the principle of proportionality (as applied and interpreted within the ECHR and the EU Charter of Fundamental Rights), in particular.97

B.  Citation of CJEU Decisions by Ukrainian Judges 1.  Description of databases used The legal database ‘Unified State Register of Judicial Decisions’ was set up in 2005 and remains one of the most comprehensive and substantive judicial databases of Ukraine in the post-​Soviet area.98 The database traces judgments of Ukrainian courts from 1 January 2006 to the present. Hitherto, by the end of 2019 this database covers 84,524,551 documents that include judgments in criminal, civil, commercial (including competition and trademarks), and administrative matters (23,459,264 judgments by administrative courts by the end of 2019). The database is free to access and funded by public funds of Ukraine. There is no obligation for Ukrainian courts to submit all decisions to the database, but only those that deal with substantive law. The database contains mainly decisions from commercial and administrative courts because these specialized courts are the most productive in Ukraine. However, it does not contain decisions by the Constitutional Court of Ukraine. These can be accessed via the Constitutional Court’s web portal, wherein about 100 decisions, opinions, and other acts of the Constitutional Court can be freely accessed (on references of the Ukrainian courts’ decisions to relevant CJEU case law see Tables 8.1 and 8.2 below).99

95 Executive Order (Ukaz) no 133/​2017 of the President of Ukraine of 15 May 2017. 96 Law of Ukraine no 2031-​VIII ‘Amending the Administrative Code regarding the ban on production and propaganda of the St George (Guards’) Ribbon’, 16 May 2017. 97 Peter Van Elsuwege, ‘Ukraine’s Ban on Russian Social Media:  On the Edge between National Security and Freedom of Expression’ (2 June 2017) VerfBlog accessed on 4 May 2020. 98 See n 87. 99 See n 88.

194  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

2.  Presentation of quantitative results Table 8.1  Number of cases where CJEU decisions were cited in Ukraine (2006‒19) (number of citations in brackets) Period

2006–​13

2013–​19

Total

Supreme Court

13

17 (17)

30 (30)

Appellate Court

567

348 (348)

915 (915)

Common Court

113,264

16,589 (16,589)

129,853 (129,853)

Labour Court

–​

–​

–​

Other tribunals

–​

–​

–​

Total:

113,844

130,798

16,954 (16,954)

Source: Author’s own research from access to official and commercial databases.

Table 8.2  Citations of CJEU decisions in Ukraine according to fields of law (2006–​19) Supreme Regional Court commercial appellate courts Fundamental Rights Principle of legal certainty Administrative law Competition law Other

Regional administrative appellate courts

Common courts

Other tribunals

5

–​

–​

–​

–​

25

–​

912

129,804

–​

0

–​

3

45

–​

–​

–​

4

–​

0

0

0

0

–​ 0

Source: Author’s own research from access to official and commercial databases.

3.  Qualitative presentation of results The impact of CJEU decisions on the Ukrainian legal system is twofold. On the one hand, CJEU decisions cannot be considered as having any explicit effect on the Ukrainian legal system, due to the fact that Ukraine is not an EU Member State and because the Constitution of Ukraine does not list EU law as a binding source

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  195 of Ukrainian law (see the informational letter of the High Administrative Court of Ukraine issued in November 2014).100 On the other hand, Ukraine is bound by the far-​reaching programme of legislative harmonization with the EU acquis within the scope of the EU–​Ukraine AA. Effective implementation of harmonization of legislation commitments by Ukraine requires not only ‘copy-​paste’ of the relevant provisions of EU legislation, but also taking into consideration the relevant decisions of the CJEU. Article 322 of the EU–​Ukraine AA significantly elevates the importance of CJEU decisions for the Ukrainian legal system. It explicitly provides that if a dispute between the EU and Ukraine raises a question of interpretation of a provision of EU law, the arbitration panel established to resolve the dispute should not decide the question, ‘but request the Court of Justice of the European Union to give a ruling on the question’, which will be binding on the arbitration panel.101 Hitherto, there have as yet been no references to the CJEU under Article 322. However, it can be argued that if this happens, these cases will indirectly influence national judges and will encourage them to apply relevant CJEU decisions as ‘authoritative’ references for national judgments. According to our data, the Ukrainian judiciary frequently cited CJEU decisions in the period 2006‒19 (about 130,000 references). However, most of these references were made by the administrative courts of Ukraine regarding so-​called ‘Chernobyl social protection cases’ (eg in Person v Kiev City Centre for Social Assistance).102 The total number of references to Van Duyn v Home Office by various appellate and first-​instance administrative courts amounts to nearly 130,000 decisions. In most cases, judges did not clarify the reasoning behind the reference to the CJEU case, since references to Van Duyn v Home Office appear almost identical, and thereby represent a ‘copy–​paste’ exercise. In some cases, Ukrainian judges refer to Van Duyn v Home Office as a judgment of the ECtHR. Other references to CJEU decisions (four references) concern the field of competition law. In particular, these relate to Case C-​8/​08, T-​Mobile Netherlands BV and others v Raad.103 The Supreme Commercial Court of Ukraine and Appellate Commercial Courts referred to Case C-​8/​08 with the purpose of applying the concept of ‘concerted practice’, which means a causal connection between concerted action and the market conduct of undertakings in competition law. Furthermore, Ukrainian administrative courts (regional appellate level) made forty-​eight references to the CJEU case C-​255/​02 Halifax plc and others v Commissioners of Customs & Excise.104 These references concerned application of the doctrine of ‘business purpose’ in the course of exemption from paying VAT. 100 Informational Letter (n 84). 101 EU–​Ukraine AA, Art 322(2). 102 See n 79. 103 Case C-​8/​08 T-​Mobile Netherlands BV and others v Raad [2009] ECR I–​4529. 104 Case C-​255/​02 Halifax plc and others v Commissioners of Customs & Excise [2006] ECR 2006 I-​1609.

196  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES All references to CJEU cases by Ukrainian courts were made in the period between 2006 and 2019 and only by specialized courts (commercial and administrative courts). It is rather difficult to explain this phenomenon, namely that predominantly Ukrainian administrative—​and to a lesser extent—​Ukrainian commercial courts are inclined to refer to the case law of the CJEU in their judgments. The only explanation can be inferred from the fact that the system of administrative courts is the newest in terms of its foundation and the youngest in terms of its judiciary. Consequently, the Ukrainian administrative and commercial courts are the most frequent recipients of EU and Western financial and technical assistance. Therefore, young Ukrainian administrative judges, well trained in the concepts and case law of the ECtHR and the CJEU, are likely to refer to the case law of these courts to justify their legal opinions. This presumption leads us to the conclusion that the EU’s technical and expert assistance can and must play an unquestionably important role in the training and encouragement of a third country’s judiciary to apply EU law principles, doctrines, and the case law of the CJEU and other European courts.

C.  Policy Recommendations and Conclusions Regardless of the impressive figures of references by the Ukrainian judiciary to the case law of the CJEU, one cannot be sure about the true influence of the CJEU on the legal system of Ukraine. Most of the references to CJEU case law were related to the ‘Chernobyl liquidators’ saga case law, with references to only one decision of the CJEU (Van Duyn). Nevertheless, references to the CJEU by the Ukrainian judiciary are gradually increasing in fields of EU–​Ukraine sectoral cooperation, such as competition law and administrative law, showing the best dynamic picture within post-​Soviet countries. This phenomenon can be explained by several factors. The first factor is the pro-​European foreign policy of Ukraine, which prioritizes integration with the EU and effective implementation of the EU–​Ukraine AA. This policy significantly contributes to and encourages pro-​European activism by the Ukrainian judiciary and their references to the case law of the CJEU. Before 2019, the former President of Ukraine, Petro Poroshenko, ensured amendment of the Constitution of Ukraine with so-​called ‘European integration’ clauses in order to fix the objective of full membership in the EU and the North Atlantic Treaty Organization (NATO) on a constitutional level.105 The Constitutional

105 Law of Ukraine no 2680-​VIII ‘On Amendment to the Constitution of Ukraine (regarding the strategic course of the state towards acquisition of full membership in the EU and NATO)’, 7 February 2019. The amended relevant provision of the preamble of the Constitution of Ukraine reads as ‘strengthening civil accord on Ukrainian soil and confirming the European identity of the Ukrainian peoples and the

THE CJEU AND THE LEGAL SYSTEM OF UKRAINE  197 Court of Ukraine considered and approved the constitutionality of this amendment in 2018.106 These clauses involved amending the preamble and provisions of the Ukrainian Constitution on the competences of the President of Ukraine, the Verkhovna Rada, and Cabinet of Ministers of Ukraine. The aim of the ‘European integration clauses’ is twofold. On the one hand, these clauses formalize the irrevocability of the strategic course of Ukraine and its legislature, executive, and judiciary towards full membership in the EU and NATO. Furthermore, these clauses may encourage and legitimize pro-​European activism by the Ukrainian judiciary, which implies application of the relevant CJEU case law. On the other hand, the ‘European integration clauses’ were adopted on the eve of the presidential and parliamentary elections in Ukraine in March 2019 that led to the arrival into office of a new President of Ukraine in the shape of political newcomer and former comedian Volodymyr Zelenskiy. Therefore, these clauses were introduced as a constitutional guarantee with the purpose of preventing a possible change of course of Ukrainian foreign and domestic policies caused by the drastic change of the ruling political power and elite in Ukraine as a result of the presidential and parliamentary elections in 2019. The second factor is that the Ukrainian judiciary has undergone a fundamental transition from a ‘Soviet-​style’ judiciary to a ‘European-​style’ judicial body. The process of transition was inspired by the ‘Dignity Revolution’ in Ukraine in December 2013‒February 2014. The EU–​Ukraine AA set a far-​reaching agenda for the rule of law and judicial reform in Ukraine as one of the priorities and essential elements of the agreement. As a result, the Ukrainian judiciary has been receiving consistent technical assistance from the EU and other international organizations, which—​among other objectives—​also promoted the foundations of the EU legal system and relevant CJEU case law. A major consequence of the judicial reform in Ukraine was the complete reinvigoration of the judiciary, including a reshuffle of the Supreme Court judges and introduction of the Anti-​Corruption Court (in September 2019). These processes smoothed the change of the judicial body on the senior level and allowed the flow of younger judges with an academic background to top judicial positions in Ukraine. The third factor—​the process of applying the EU–​Ukraine AA—​brings more cases for consideration by the Ukrainian judiciary that require considering the relevant CJEU case law. As the results of our study indicate, the Ukrainian courts are gradually increasing their references to the relevant CJEU case law in areas of competition, state aid, and intellectual property. irrevocability of the European and Euroatlantic course of Ukraine’. The preamble to the Constitution of Ukraine contains the reference ‘confirming the European identity of the Ukrainian peoples and the irrevocability of the European and Euroatlantic [foreign policy] of Ukraine’. 106 Decision of the Constitutional Court of Ukraine no 3-​B/​2018 of 22 November 2018  ‘On Constitutionality of the European Integration Amendment’.

198  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES To conclude, we have set out a number of considerations which led us to argue that the success of the process of ‘Europeanization’ of the Ukrainian judiciary and, in particular, the increase of references to the case law of the CJEU by the former, relies on the successful performance of several factors. These are: continuation of the pro-​European internal and external policy of Ukraine after presidential and parliamentary elections in 2019; devotion to the effective implementation of the EU–​Ukraine AA underpinned by strict conditionality and monitoring by the EU; and enhancement of technical support for the Ukrainian judiciary accompanied by considerable educational measures aimed at strengthening expertise among senior and junior members of the Ukrainian judiciary.

9

The Court of Justice of the European Union and the Armenian Legal Order Narine Ghazaryan

A.  Introduction Armenia is a landlocked developing country situated in the South Caucasus, with a population of less than three million.1 Having established a presidential republican political system following its independence from the Soviet Union in 1991, Armenian democracy has been marred by corruption, falsified elections, and clientelism for most of its existence.2 The two leading sectors in the Armenian economy include the mining industry and agriculture, with the economy demonstrating positive growth trends in 2017–​18.3 Remittances from labour migrants play a significant role in the Armenian economy, at times reaching 13.9 per cent of GDP.4 Armenia has been a member of the World Trade Organization (WTO) since 2003, with the European Union (EU or Union) being its biggest export market and second-​biggest import market.5 The country also benefits from the EU’s Generalised Scheme of Preferences (GSP+ scheme), steadily increasing trade in aluminium, iron, and steel.6 Armenia is a unique partner of the EU due to the peculiar history of relations with the Union. Being at times a keen partner in terms of integration prospects

1 United Nations, The World Economic Situation and Prospects 2018 (United Nations 2018) 146; The President of the Republic of Armenia, ‘General Information on the Republic of Armenia’ accessed 4 May  2020. 2 See eg OSCE/​ODIHR, ‘OSCE/​ODIHR Election Reports for Armenia Parliamentary Elections 2007, Presidential Elections 2008, Presidential Elections 2013’ accessed 4 May 2020. 3 World Bank, ‘Armenia Country Context’, 2018 accessed 4 May 2020. 4 ‘Armenia is One of Three Leading Countries in Europe and Central Asia in Terms of Remittances’ (25 October 2017) Arka News Agency accessed 4 May  2020. 5 See further accessed 4 May 2020. 6 Joint Staff Working Document, ‘The EU Special Incentive Arrangement for Sustainable Development and Good Governance (‘GSP+’) Assessment of Armenia Covering the Period 2016‒2017’ (2018) 23 SWD final. Narine Ghazaryan, The Court of Justice of the European Union and the Armenian Legal Order In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0009.

200  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES offered by the EU,7 its political trajectory was to be changed due to its accession to the Eurasian Economic Union (EAEU) under pressure from Russia.8 Unlike in Ukraine, accession to the EAEU did not face much domestic opposition.9 The nascent process of integration towards the legally shaky EAEU has not, however, overridden the country’s desire to continue its cooperation with the EU, albeit a cooperation of a more low-​key nature than originally envisaged. Armenia’s past integration efforts were channelled through a Partnership and Cooperation Agreement (PCA),10 as well as various instruments of the European Neighbourhood Policy (ENP), including a bilateral Action Plan.11 The latter did lead to EU law playing a certain role in the Armenian legal order to some extent.12 However, it can hardly be claimed that EU law and the jurisprudence of the Court of Justice of the EU (CJEU) has been embraced by the national judiciary or other institutions to a significant extent. A new agreement between the EU and Armenia was signed in November 2017.13 The Comprehensive and Enhanced Partnership Agreement (CEPA), which has been provisionally applied since June 2018, sets a tailored framework for cooperation between the parties accommodating the country’s membership of the EAEU.14 Although falling short of a deep and comprehensive free trade agreement (DCFTA) requiring extensive approximation obligations, the CEPA does provide significant scope for approximation and regulatory convergence with the EU acquis. This might create certain opportunities for transposition of CJEU case law into the Armenian legal order and jurisprudence. Within that context, this chapter investigates the impact or lack thereof of the case law of the CJEU in the Armenian legal order. Section B discusses the Armenian judicial order and the role of judicial precedent prior to section C providing a brief account of EU–​Armenia relations. Section D traces the impact of 7 Laure Delcour and Kataryna Wolczuk, ‘The EU’s Unexpected “Ideal Neighbour”? The Perplexing Case of Armenia’s Europeanisation’ (2015) 37(4) J Eur Integ 491. 8 ‘Armenia Chooses Russia over EU’ (2013) European Voice, 3 September; Treaty on the Accession of the Republic of Armenia to the Treaty on Eurasian Economic Union, 29 May 2014. 9 Loda cites the absence of pro-​European political opposition and lack of preparedness of a civil society conditioned by Brussels’ weak approach towards ‘efficient engagement’ with civil society as reasons for public silence; Chiara Loda, ‘The European Union as a Normative Power: The Case of Armenia’ (2017) 33 East Eur Politics 275, 276. 10 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Armenia, of the other [1999] OJ L239/​3 (EU–​Armenia PCA). 11 Narine Ghazaryan, The European Neighbourhood Policy and the Democratic Values of the EU: A Legal Analysis (Hart 2014) 67‒71, 131‒32. 12 Narine Ghazaryan and Anna Hakobyan, ‘Legislative Approximation and Application of EU Law in Armenia’ in Roman Petrov and Peter van Elsuwege (eds), Legislative Approximation and Application of EU Law in the Eastern Neighbourhood of the European Union (Routledge 2014). 13 Council Decision (EU) 2018/​104 of 20 November 2017 on the signing, on behalf of the Union, and provisional application of the Comprehensive and Enhanced Partnership Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part [2018] OJ L23. 14 The provisional application followed ratification by the Armenian Parliament. It is currently awaiting ratification by all Member States.

THE CJEU AND THE ARMENIAN LEGAL ORDER  201 CJEU jurisprudence followed by an analysis. The final substantive section, section E, considers the potential of the CEPA in creating conditions for extraterritorial application of CJEU case law in Armenia. The chapter is summarized in Section F.

B.  The Judicial System of Armenia According to the Armenian Constitution, the Armenian judiciary is an independent branch of power with a hierarchical structure including first-​instance courts of general jurisdiction, Courts of Appeal, and the Court of Cassation function, in addition to specialized courts, of which only the Administrative Court is mentioned.15 There are eighteen courts of first instance exercising jurisdiction over all civil, economic, criminal, military, and administrative cases.16 The jurisdiction of the Courts of Appeal (civil, economic, criminal, and military cases) extends to appeals in all cases decided by the courts of first instance. Examination of a case in an appellate court is not confined to the issues raised by the parties, and the court can examine the case fully.17 The Court of Cassation (with two chambers of civil and economic cases, and criminal and military cases) is the court of final instance in appeals against decisions of courts of lower instance on the same grounds that were examined in the Court of Appeal.18 While the Court of Cassation acts as the court of highest instance, the Constitutional Court administers ‘constitutional justice’.19 The Constitutional Court guarantees the supremacy of the Constitution.20 The Court has wide-​ranging functions, including reviewing the conformity of legislation with the norms of the Constitution. The Constitutional Court also plays an important role in the development of legal precedent in Armenia, which has been discussed elsewhere.21 The Armenian legal system is based on the continental legal tradition, often complicating the process of applying precedent law.22 Precedent as a source of law has been emerging gradually, often with an impetus from constitutional reforms. Following constitutional amendments in 2005, Article 92 of the Constitution provides that ‘[t]‌he highest court instance in the Republic of Armenia, except for matters of constitutional justice, is the Court of Cassation, which shall ensure uniformity in the implementation of the law’. This aims at limiting the possibility of disparate and arbitrary interpretation and application of law. 15 Constitution of the Republic of Armenia, Art 163, as amended on 6 December 2015  accessed 2 May 2020. 16 ibid Art 13. 17 ibid Art 167. 18 ibid Art 171. 19 ibid Arts 167 and 171. 20 ibid Art 167. 21 Ghazaryan and Hakobyan (n 12). 22 ibid.

202  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Subsequently, the Armenian Judicial Code, as well as the Criminal and Civil Codes were amended, significantly altering the status and the nature of decisions by the Armenian Court of Cassation. Currently, Article 15 of the Armenian Judicial Code establishes a right for each individual to rely in similar circumstance on the ratio decidendi of a judgment or interpretations of law by other courts.23 This reference is important, as it applies not only to the Armenian Court of Cassation as the final instance for resolving judicial disputes, but also to the Armenian Constitutional Court.24 The role of the Constitutional Court is particularly important in view of its relative openness towards external legal precedent, in particular in relation to the application of the European Convention on Human Rights (ECHR) and relevant case law.25 The Constitutional Court established that the jurisprudence of the European Court of Human Rights (ECtHR) constitutes a composite element of the Armenian legal order.26 Only later was an obligation to abide by the relevant ECtHR jurisprudence laid down in legislation.27 As a result, references to the ECtHR can be found in 37,440 cases at all judicial instances, although this does not necessarily entail a meaningful engagement with the relevant cases or their ratio. No such obligation can be found in relation to CJEU jurisprudence. This is logical, given Armenia’s membership of the ECHR and its past loose relations with the EU through the PCA, which did not necessitate approximation of the legal order.

C.  A Brief Overview of EU–​Armenia Relations Casting a retrospective look at bilateral relations between the EU and Armenia, one needs to consider the main legal instruments to verify the depth of cooperation between the parties and the potential implications for the extraterritorial application of CJEU jurisprudence. Following the restoration of Armenia’s independence in 1991, the first bilateral legal instrument between the parties was the

23 LA-​135, 21 February 2007. 24 Decision of the Armenian Constitutional Court DCC-​984 of 15 July 2011. 25 Ghazaryan and Hakobyan (n 12). 26 Constitutional Court of the Republic of Armenia, Decision DCC-​350 on the Case on Deciding the Question of Conformity of Obligations Stated in the Convention for the Protection of Human Rights and Fundamental Freedoms Signed on 4 November 1950 at Rome, in the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms Signed on 20 March 1952 at Paris, in Protocol No 4 on Certain Rights and Freedoms other than those Already Included in the Convention and in the First Protocol thereto, as Amended by Protocol 11I, signed on 16 September 1963 at Strasbourg, and in Protocol No 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 22 November 1984 with the Constitution of the Republic of Armenia, 22 February 2002. 27 The revised Judicial Code, in Art 15, imposed a direct obligation on the national courts to abide by ECtHR decisions in cases involving similar circumstances only in 2007; Art 15, LA-​135, 21 February 2007.

THE CJEU AND THE ARMENIAN LEGAL ORDER  203 PCA, concluded in 1996, in line with the EU’s approach towards other post-​Soviet states (with the exception of the Baltic states).28 The agreement did not enter into force until 1999, leaving its implementation to a later period overlapping with a subsequent EU initiative, namely the ENP. Unlike the PCAs concluded with Russia, Ukraine, and Moldova, the EU–​ Armenia PCA fell short of promising a prospect of establishing a free trade area (FTA), instead providing for closer economic cooperation, with minimum state regulation in key areas of cooperation.29 The pace of legislative approximation thus depended on the objectives of Armenia’s economic development and its transition to a market economy.30 Most importantly, the agreement imposed no strong obligations in terms of legislative approximation, instead introducing the so-​called ‘best endeavour’ approach towards the issue of approximation in Article 43: Armenia ‘shall endeavour to ensure that its legislation will be gradually made compatible with’ EU legislation. Given such a weak commitment, the aim of a ‘gradual rapprochement’, as stated in the preamble to the EU–​Armenia PCA, did not create the political momentum necessary to embark on substantive legal reforms.31 Nor could sufficient incentives be found in the limited assistance provided by the EU, given the country’s precarious political and economic situation.32 In the light of the perceived importance of the South Caucasus at the start of the new millennium,33 Georgia, Armenia, and Azerbaijan were, somewhat belatedly,34 included within the addressees of the ENP in 2004.35 The ENP aimed at the economic and political transformation of the Eastern and Southern neighbours similar to the EU accession policy, although falling short of the membership perspective.36 Given the ENP’s incentive of integration with the EU internal market, the legislative approximation process was expected to become more significant in the next bilateral document established between the parties.

28 Narine Ghazaryan, ‘The ENP and the South Caucasus:  Meeting the Expectations?’ in Richard Whitman and Stefan Wolff (eds), The European Neighbourhood Policy in Perspective:  Context, Implementation and Impact (Palgrave 2012). 29 ibid. 30 EU–​Armenia PCA, Art 1. 31 Ghazaryan and Hakobyan (n 12). 32 EuropAid Co-​operation Office, Directorate General for Development and External Relations Directorate General, ‘Armenia: Country Strategy Evaluation, Final Report, Vol I’ (January 2006); Vit Stritecky, ‘The South Caucasus: A Challenge for the ENP’ in Petr Kratochvil (ed), The European Union and Its Neighbourhood:  Policies, Problems and Priorities (Institute of International Relations 2006) 63‒64; TACIS Action Programme for 2006, Armenia. 33 Ghazaryan, The European Neighbourhood Policy (n 11) 10. 34 The South Caucasian countries were initially excluded from the ‘Wider Europe’ initiative, which laid the foundations for the ENP; Commission Communication, ‘Wider Europe-​Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’ of 11 March 2003, COM (2003) 104 final (Wider Europe Communication). 35 European Council, ‘A Secure Europe in a Better World, European Security Strategy Paper’, 12–​13 December 2003, 8; General Affairs and External Relations Council, 14 June 2004, para 12. 36 Ghazaryan, The European Neighbourhood Policy (n 11)  53–​84; Bart Van Vooren, EU External Relations Law and the European Neighbourhood Policy: A Paradigm for Coherence (Routledge 2011).

204  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The first ENP bilateral document was the EU–​Armenia Action Plan, signed in November 2006. The document set the priority areas for cooperation between the parties and was to be implemented alongside the PCA, at times also specifying certain PCA obligations as priority areas. Albeit soft law in nature, the document defined priority areas where EU rules and legislation were to play a certain role through regulatory convergence, legislative approximation, and harmonization.37 It also attempted to revitalize the integration process under the PCA by placing a certain emphasis on the legislative approximation and convergence obligations, which nonetheless did not lead to significant achievements.38 The initiation of the Eastern Partnership (EaP) in 2008,39 however, made a significant difference in relation to Armenia’s efforts towards legislative approximation with the acquis communautaire. This initiative was to separate the Eastern neighbours from the Southern ones by acknowledging their proximity to the EU and signalling new prospects, including association agreements containing a DCFTA.40 For various reasons explored by Delcour and Wolczuk, the Armenian authorities willingly embarked on a path of reforms based on legislative approximation, achieving substantive results in the period 2010–​13 as part of the Association Agreement’s negotiation process.41 The Armenian declaration that it was to join a rival Eurasian integration project prior to the anticipated initialling of the Association Agreement appeared to terminate the EU integration process, given that membership in the EAEU precludes the conclusion of a DCFTA.42 In the period preceding these events, Russia, being Armenia’s main security guarantor, intensified its military cooperation (including arms sales) with Azerbaijan, with which Armenia is locked into a frozen conflict over the status of the Nagorno-​ Karabakh region. Russia was also willing to exercise its energy leverage in the form of raising gas prices by 50 per cent in the summer of 2013, which was to have a detrimental impact on the Armenian population.43 As a result, Armenia felt compelled to join the EAEU. Nonetheless, the impact of Armenia’s prior efforts towards European integration was not nullified. Before its accession to the EAEU, the Armenian authorities

37 Ghazaryan and Hakobyan (n 12). 38 ibid. 39 Commission Communication, ‘Eastern Partnership’, COM (2008) 823 final, 3 December 2008. 40 Ghazaryan, The European Neighbourhood Policy (n 11) 84‒92. 41 Delcour and Wolczuk (n 7). 42 Laure Delcour and others, ‘The Implications of Eurasian Integration for the EU’s Relations with the Countries in the Post-​Soviet Space’ (2015) 68(1) Studia Diplomatica 5‒33; Pasquale de Micco, ‘When Choosing Means Losing:  The Eastern Partners, the EU, and the Eurasian Economic Union’, European Parliament study, 7–​8 accessed 4 May 2020. 43 See further Narine Ghazaryan and Laure Delcour, ‘From EU Integration Process to the Eurasian Economic Union’ in Roman Petrov and Peter van Elsuwege (eds), Post-​Soviet Constitutions and Challenges of Regional Integration:  Adapting to European and Eurasian Integration Projects (Routledge 2017).

THE CJEU AND THE ARMENIAN LEGAL ORDER  205 completed the implementation of sectoral strategies and action plans adopted as part of the DCFTA negotiations.44 Besides, Armenian progress in terms of compliance with WTO-​compatible EU templates puts the country in the lead in comparison with other EAEU members (as the EAEU is based on WTO rules).45 This narrative suggests that the EU integration process has not been fully reversed in the country. The newly concluded CEPA confirms this by setting obligations on legislative approximation and regulatory convergence in areas compatible with the country’s membership of the EAEU. Section D considers whether the integration process prior to the CEPA has led to any extraterritorial application of the CJEU jurisprudence in the Armenian legal order.

D.  Tracing the Case Law of the CJEU in the Armenian Legal Order 1.  In search of an impact It has been noted that legal approximation does not automatically translate into the application of EU law as such.46 This statement also rings true in the case of Armenia. While the post-​EaP years witnessed increased incorporation of EU legislation and norms into the Armenian legal order, this did not lead to the application of EU law, including CJEU case law, whether by courts or other institutions. Even in the Parliamentary Committee on EU integration issues, no such activity could be detected, perhaps due to lack of expertise and resources. The main case law databases include the jurisprudence of all courts described in section B above,47 while the case law of the Constitutional Court is accessible via its website. An examination of these databases, as well as interviews with judges and other practitioners, revealed no instances of CJEU case law citation by the Armenian courts, with the exception of the Constitutional Court. Even then, it is only in two cases that CJEU case law can be traced. While the quantity of citations would suggest minimal impact from CJEU case law, the quality of the citations requires further analysis. The cases are analysed in turn below.48 In 2011, in a case on the compatibility of Article 113 and 114 of the Armenian Labour Code with the Armenian Constitution, namely the right to employment, the Armenian Constitutional Court referred to the CJEU case Felix Palacios de la

44 ibid 137. 45 ibid. 46 Adam Lazowski, ‘With but Without You:  The Europeanisation of the Legal Orders of the Neighbouring Countries’ in Andrea Ott and Ellen Vos (eds), Fifty Years of European Integration: Foundations and Perspective (TMC Asser Press 2009) 263. 47 The main databases are datalex.am, armlaw.am, and arlis.am. 48 The analysis of the first case is based on Ghazaryan and Hakobyan (n 12).

206  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Villa v Cortefiel Servicios SA.49 In this case, the CJEU ruled that mandatory retirement age provisions in collective agreements are lawful ‘where [ . . . ] such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime’.50 Article 113 of the Armenian Labour Code entitles an employer to terminate an employment contract in cases where the employee has reached the retirement age set by law, unless the contract prescribes otherwise. Article 114 of the same code lists the grounds considered to be legitimate for terminating an employment contract, including age ‘except for cases provided in the legislation’. Following inter alia the reasoning in the Felix Palacios de la Villa case, the Armenian Constitutional Court upheld the provisions of the Armenian Labour Code and reserved the right of an employer to terminate an employment contract when the employee reaches mandatory retirement age.51 It is necessary to identify the context in which the Constitutional Court relied upon Felix Palacios, since it is a rather unusual occurrence. The Court based its conclusions mostly on national legislation, as well as on its own previous case law. Although it could have reached a judgment solely on the basis of national legislation, the Constitutional Court referred to international practice in order to enhance its reasoning. First, it referred to the practice of the International Labour Organization (ILO). Further, it addressed the practice of a few other states, the majority of which were EU Member States. Finally, and most importantly, the Constitutional Court relied on Felix Palacios as a confirmation, existing in international practice, of the position that termination of an employment agreement based on the retirement age is conditional upon fulfilment of the employee’s right to social security. Thus, CJEU case law has been incorporated as part of international practice in a comparative context to validate the conclusions of the Constitutional Court. This also suggests that the case law of the CJEU was used to support the conclusions of the Armenian Constitutional Court, as opposed to being used as the main basis for reaching the ratio. On the one hand, it can be suggested that the case demonstrates that CJEU jurisprudence is viewed as the best international practice to tap into. On the other hand, however, the Court missed an opportunity to set this judicial excursion onto a legal basis, perhaps by placing it within the context of legislative approximation with EU law or generally within the bigger picture of EU–​Armenia cooperation. The next case, however, suggests that this was more a deliberate step, rather than a mere omission.

49 Case C-​411/​05 Felix Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I–​8531. 50 ibid para 77. 51 Decision of the Armenian Constitutional Court, DCC-​991, 11 October 2011. For a similar reliance on this case in a different jurisdiction, see Chapter 12 on Israel by Arie Reich.

THE CJEU AND THE ARMENIAN LEGAL ORDER  207 That is because this omission is also characteristic of the second case referring to CJEU jurisprudence.52 This 2015 case concerned the 2011 Law on Identification Cards according to which (for the purpose of personal identification in personal data information networks), when receiving identification cards, citizens must give the fingerprints of their index fingers to the police. Article 8(3) of the same law stipulated that upon the expiry of previously issued passports, passports would no longer be issued under the old legislation, with the exception of certain cases provided by law. The case also concerned Article 5(1)(10) of the 2002 Law on the State Register of the Population, which provided for processing of personal information, including biometric data, in the state register. The provision is a result of an amendment to the Law on Identification Cards, introduced in 2011. The case was based on an application by the Ombudsman objecting against the Law on Identification Cards. He argued that the law breached the rights of religious minorities, who refused to renew their passports according to the new procedure due to the card’s electronic nature and the presence of electronic storage. The religious minority that would have objected to the practice is Molokan Christians. Ethnic Russians, they were expelled from Tsarist Russia to the outskirts of the empire, of which Armenia constituted a part, due to their deviation from the tenets of the Russian Orthodox Church.53 Akin to the Amish community in the United States, Molokans in Armenia maintain a traditional lifestyle in villages and cities, shunning modern technologies such as TV and mobile phones. Their refusal to abide by the new procedure in turn led to members of this minority group being unable to exercise their constitutional rights to social security and property. According to the applicant, the law disproportionately restricted constitutional rights to freedom of religion, social security, and property, as well as Article 9 ECHR, vis-​à-​vis the objectives of legislative reform, namely improvement to the service provided to citizens and simplification of bureaucracy. The arguments of the respondent are particularly relevant for analysing the context of the CJEU case law citation here. The Parliament, which acted as the respondent in the case, cited the 2015 Law on Personal Data Protection in defence of the requirements on processing of fingerprints, stressing that the law ensured compliance with European standards, including the 1981 Council of Europe (CoE) Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data54 and the 1995 Personal Data Protection Directive of the EU.55 52 Decision of the Constitutional Court, DCC-​1244, 8 December 2015. 53 Aram Haytian, ‘The Molokans in Armenia’ (2007) 11 Iran Cauc 33, 34–​35. 54 For the sake of precision, it should be noted that the Armenian Parliament itself mistakenly refers to this Convention as an ‘EU Convention’. The Convention was ratified by Armenia in 2012; Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, ETS no 108, Strasbourg, 28 January1981. 55 Directive 95/​46/​EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281.

208  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES It is not, however, this reliance on EU legislation in drafting the national law that prompted the Constitutional Court to investigate the relevant CJEU case law. To reach its conclusions, the Court considered it necessary to examine the European legal framework, including CoE documents, namely the 1981 Convention mentioned above and the 2011 Resolution of the Parliamentary Assembly on the need for global consideration of the human rights implications of biometrics.56 The Court next considered the provisions of the EU Data Protection Directive, in particular the Member States’ obligation to ensure that personal data is processed only where the processing is necessary for public purposes or for implementing a task stemming from the official functions of the controlling body. It also made recourse to Council Regulation 2252/​2004 on standards for security features and biometrics in passports and travel documents issued by Member States.57 Having considered the international instruments binding upon Armenia, and EU legal acts which have no effect on it, the Court then turned to judicial practice relevant to pertinent issues. It first considered the relevant ECtHR case law,58 before turning to CJEU jurisprudence—​most remarkably, without drawing a distinction between the status of the two courts in the Armenian legal order. It is the CJEU case of Schwarz v Stadt Bochum that is cited to deduce certain ‘principled approaches’ towards evaluating the legitimacy of collection and use of personal data.59 The principles deduced by the Constitutional Court mainly concern application of the principle of proportionality. These include inter alia the principle that fingerprints can be used only for verification of a passport and the identity of the relevant person; legal regulation should guarantee that data cannot be obtained by unauthorized individuals; and relevant data should be stored in a strictly secured carrier/​chip in the passport of the person. The citation of Schwarz is then followed by reference to French constitutional practice, as well as to other international practice, including that of non-​EU countries. Certain observations should be made regarding the citation of Schwarz. It is striking to note the ease with which the Constitutional Court references CJEU case law without offering a normative basis for such judicial transposition. As mentioned earlier, no distinction is drawn between the status of ECtHR case law and that of the CJEU. Had the Court wished to do so, it might have been able to base its analysis on the nexus between national law and EU secondary legislation interpreted in CJEU case law. This would be simply supportive of the analytic path taken by the Court. Schwarz is a case interpreting The Data Protection Directive and Regulation 2252/​2004. While it is the 2015 Armenian Law on Personal Data Protection that aimed at ensuring conformity with the EU Data Protection 56 Resolution 1797 (2011). 57 [2004] OJ L385. 58 S and Marper v The UK App nos 30562/​04 and 30566/​04 (ECtHR, 4 December 2008); Rushiti v Austria App no 28389/​95 (ECtHR, 21 March 2000). 59 Case C-​291/​12 Michael Schwarz v Stadt Bochum [2013] (ECLI:EU:C:2013:670).

THE CJEU AND THE ARMENIAN LEGAL ORDER  209 Directive and the 1981 CoE Convention mentioned above, Schwarz is relied upon to interpret pre-​existing Armenian legislation, namely legislation which was not intended per se to conform with EU law. Thus, the pre-​existing Armenian legislation was interpreted in line with the EU Data Protection Directive and the adjacent legal framework, including Regulation 2252/​2004. It can therefore be suggested that legislative approximation did play a part in the judicial analysis, even though without making any normative justifications rooted in the fact of approximation. Ultimately, the citations in these two cases are the odd ones out, and cannot indicate any meaningful embracing of CJEU case law even by the Constitutional Court. Beyond the judicial system, applying or consulting CJEU jurisprudence might be expected in areas where significant approximation has taken place. However, this is not necessarily the case. For instance, pockets of legislative approximation have been identified where certain institutions would proactively seek to converge Armenian law with EU rules and practice, for example, within the Central Bank of Armenia in relation to financial regulations.60 Even in these areas, however, no consideration of CJEU case law has been recorded.61 Similarly, in the area of competition law, the legislative and institutional model followed by Armenia has been largely based on EU law.62 Screening of decisions by the competition authority, however, showed no signs of traceable CJEU impact.63 Section D.2 explains the reasons for the predominant absence of CJEU jurisprudence in Armenian judicial practice and beyond.

2.  Questioning the lack of impact of CJEU case law The primary and most evident reason for the absence of CJEU case law in Armenian judicial practice and beyond is the lack of a specific legal obligation to follow CJEU practice in the Armenian legal order. This obstacle towards incorporation of CJEU case law has been pointed out both by judges and academics.64 As noted by one of the judges interviewed, there is a psychological underpinning to this: unless the practice is mandatory, judges would not follow CJEU jurisprudence voluntarily.65 The significance of such a legal obligation is evident in relation to ECtHR case law: Armenia’s accession to the ECHR coupled with the legislative obligation to follow ECtHR case law led to the gradual nominal acceptance of the 60 Ghazaryan and Hakobyan (n 12). 61 Interview, Central Bank official, June 2018. 62 Ghazaryan and Hakobyan (n 12). 63 The decisions of the State Commission for the Protection of Economic Competition of the Republic of Armenia are available on its website in the Armenian language:  accessed 4 May 2020. 64 Interview with a judge, Court of Appeal July 2018; Interview with a judge, Court of First Instance, April 2018; Interview with an academic at the Russian-​Armenian University, May 2018. 65 Interview, Court of First Instance, April 2018.

210  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES latter in Armenian judicial practice, albeit with poor results. Given the absence of a similar obligation in the case of the CJEU, as pointed out by judges at various instances, it is even questionable whether individual judges can be expected to cite CJEU precedents, since such ventures would require a normative justification.66 Hence, rather than treating CJEU case law as precedent, the maximum that can be expected is to view the former as one possible legal interpretation or an example of a certain doctrinal approach.67 Distilling the above-​mentioned normative justification directly from the status of EU–​Armenia relations based on PCA and ENP soft-​law instruments would have proved difficult even for the most enthusiastic of judges or lawyers. An indirect argument could have been made to justify CJEU case law citations to interpret legal acts which were the result of legal approximation. As noted earlier, even in the citations by the Constitutional Court, no attempt is made to make such an argument. It is feasible, however, that judges might not even be aware of the approximation background of a particular legal act, as the nexus between EU law and the relevant Armenian law might not necessarily be obvious.68 The explanatory notes accompanying Armenian laws, even when they expressly refer to relevant EU law, are not necessarily read by the judges. Even in case of awareness of the approximation background of the relevant legal act, an issue of competence will arise due to significant cognitive barriers. First of all, a significant number of Armenian judges were educated prior to the mid-​2000s, when EU law started to be taught at universities. While judicial training could compensate for lack of knowledge of EU law,69 no training on matters of EU law has been identified since the conclusion of the PCA. Nor can any be traced through past EU financial or technical assistance to educate Armenian judges on matters of EU law in EU assistance towards justice reform.70 The judges who have qualified in the past fifteen years might have had opportunities to come across EU law while undertaking their undergraduate or postgraduate studies, albeit to a limited extent. One of the major law schools in Armenia introduced a mandatory undergraduate module on EU law, covering EU institutions and constitutional

66 Interview, Court of Appeal, July 2018. 67 Interview, Court of Appeal, July 2018. 68 Ghazaryan and Hakobyan (n 12). 69 Interview at the Russian-​Armenian University, May 2018. 70 The EU has periodically sponsored justice reform to boost the independence and efficiency of the judiciary both through the TACIS financial instrument and the financial instruments of the ENP. Most notably, it allocated EUR 18  million for justice reform in 2008, followed in Phase II by allocating EUR 20 million in 2012. The funding was used inter alia to support the EU–​CoE Partnership for Good Governance programme with the aim of improving the legal framework, training of legal professionals, raising awareness of the role of women judges, and increasing the independence of the judiciary inter alia through social and financial changes; see further accessed 4 May 2020. A further EUR 4 million was allocated to ‘Consolidation of the Justice System in Armenia’ as part of budget support in 2017 under the European Neighbourhood Instrument.

THE CJEU AND THE ARMENIAN LEGAL ORDER  211 foundations in 2004‒05 at Yerevan State University. With the support of the EU, a Chair for European and International Law and a Centre for European Law and Integration was established at the same University after 2004.71 A Master’s Degree in EU law was introduced, offering a number of EU law subjects, including a few courses on the internal market, competition law, methodology of legal approximation, and EU international relations.72 The Master’s Degree proved unpopular due to the preference for civil and commercial law subjects, which led to its merger with the Master’s degree in International Relations and thus a reduction in the number of specialized EU law courses taught at the postgraduate level.73 At another major law school with an international outlook, limited teaching of EU law issues can be found, including semester-​long courses on EU institutions and methodology of legal approximation.74 Teaching these courses has been sporadic, and has lacked continuity due to a shortage of available experts.75 An interview at another leading law school revealed a lack of substantive teaching of EU law, the focus instead being increasingly on EU integration processes.76 Here, EU law is taught as a semester-​long undergraduate module focusing on constitutional law aspects, EU treaties and principles, but with little substantive content due to the restricted amount of hours.77 At a postgraduate level, EU law is taught as an elective course which lacks popularity, although it is anticipated to attract more students due to the CEPA-​based restructuring of the subject.78 Thus, most courses on EU law concern those aspects which would not have much practical implication in judicial practice. It is, therefore, not a surprise that one of the judges remarked on the lack of availability of specialized courses around subjects such as competition law, which would offer more practical insight.79 Ultimately, no knowledge of EU law is required to pass the examination to qualify as a judge or to be admitted to the bar. Another cognitive impediment is the language barrier faced by judges in their application of international jurisprudence. As noted above, a large proportion of Armenian judges were educated during the Soviet era and many of them are unfamiliar with the English language. This has been noted as a factor affecting application of ECtHR case law, despite the relevant legal obligation.80 This is not surprising, as only cases involving the Armenian government are officially translated into Armenian. The translation of important cases is published by academic

71

Annex, Action Fiche for Armenia—​ENPI AAP 2008.

72 ibid. 73 ibid. 74

Interviews with former lecturers at the American University of Armenia, April 2018.

76

Interview at the Russian-​Armenian University, May 2018.

75 ibid. 77 ibid. 78 ibid. 79 80

Interview, Court of First Instance, April 2018. Ghazaryan and Hakobyan (n 12).

212  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES initiative or the union of judges on a voluntary basis. In the case of CJEU case law, the linguistic barrier coupled with the absence of any normative imperative would explain the absence of judicial interaction with CJEU jurisprudence. Few Armenian judges would be versed sufficiently in such languages as English, French, or German—​let  alone other official EU languages—​to read and understand CJEU judgments. Additionally, the absence of one single source of EU law in translation into Armenian has been pointed out as an impediment to possible judicial references.81 As a result, the possibility of incorporating CJEU case law rests on the naked enthusiasm of a very few individuals interested in EU law. Lawyers working as judicial clerks or legal experts in various state institutions would raise such a possibility by referencing case law, only for it to be left out by judges or other state officials.82 It is also possible that there might be an impact beyond citations, in that judges might on occasion be influenced by EU law, but they would avoid referencing it,83 leaving any impact untraceable. Cases have been noted where lawyers representing the parties referred to CJEU case law, which was incorporated in the court’s reasoning, albeit omitting the reference.84 Judges also point out their extremely heavy workload, where an extraordinary volume of cases must be resolved in short periods of time, as a reason impeding any possible exploration of international jurisprudence.85 Furthermore, the absence of CJEU citations should be placed within the larger context of reluctance on the part of Armenian judges to follow international law, including the positions and opinions of international interpretative bodies.86 This reluctance stems from the overwhelming workload of judges at various instances, as well as lack of familiarity with relevant international practice. Even in the two Constitutional Court cases identified above, the explanation for referencing CJEU case law is not entirely obvious. While the Legal Advice Department at the Constitutional Court prepares a report on international legislative and judicial practice (including of European countries), this is not the case as far as CJEU case law is concerned.87 Thus, reliance on CJEU precedents derives neither from the legal representation of the parties, nor from the legal service of the Constitutional Court. Rather, it can perhaps be explained by the fact that the cases share the same reporting judge.88 In his brief response to a written query regarding the two cases, the reporting judge first noted rather generally that substantive recourse to CJEU case law assisted in the process of building a democratic



81

Interview, Court of First Instance, April 2018.

82 ibid. 83

ibid; interview, Court of Appeal, July 2018. Interview, Court of First Instance, April 2018. 85 ibid. 86 ibid. 87 Interview, Constitutional Court, July 2018. 88 ibid. 84

THE CJEU AND THE ARMENIAN LEGAL ORDER  213 state based on the rule of law.89 He further clarified that the Constitutional Court relies on a foreign precedent not only for the sake of upholding Armenia’s international obligations (as in the case of the ECHR), but also beyond that to take into account ‘the best or preferable legal standards’.90 This response suggests that as such the EU–​Armenia legal framework was not a catalyst for these instances of judicial borrowing. A lack of knowledge and general reluctance to engage with CJEU case law has been observed in the Constitutional Court more generally.91 Ultimately, the discussion above suggests minuscule traceable impact of CJEU case law on Armenian judicial practice or the legal order more generally. While the CEPA is expected to foster EU–​Armenia cooperation, its impact on CJEU case law transposition is not straightforward, as discussed in section E.

E.  The CEPA and the Future Prospects for CJEU Case Law in Armenia Having recovered from the initial shock of Armenia’s refusal to sign the Association Agreement,92 the EU ultimately undertook a ‘scoping exercise’ in 2014‒15 to identify possible areas of cooperation which would be compatible with Armenia’s accession to the EAEU. While the EU was perceived to have diminished ‘institutional power’, this was nonetheless positively perceived in Armenia, as the national government clearly desired to continue EU approximation compatible with the EAEU.93 Despite some difficulties in the scoping process due to lack of clarity of commitments undertaken by Armenia,94 the exercise led to negotiation of a new agreement. This agreement crucially misses the DCFTA element, setting Armenia apart from Ukraine, Georgia, and Moldova, which signed an Association Agreement with the EU containing a DCFTA.95 The political and economic drawbacks of rejection of the Association Agreement were obvious. Less so were the drawbacks in terms of the evolution of the Armenian legal system, including its judicial practice. The EU–​Ukraine Association Agreement, for instance, contains

89 Hrant Nazaryan, Written Response, 22 January 2018. 90 ibid. 91 Interview, Constitutional Court, July 2018. 92 ‘Gunnar Wiegand:  EU Respects Armenia’s Decision to Join Eurasian Economic Union’ (2015) News.Am, 4 November. 93 Irina Petrova and Anna Ayvasyan, ‘Perceptions of the EU’s Power in the Eastern Partnership Region: The Case of Armenia’ (2018) 23(61) EFAR 74, 77. 94 Hrant Kostanyan, ‘The Rocky Road to an EU–​Armenia Agreement:  From U-​turn to Detour’ (2015) CEPS Commentary, 3 February. 95 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part [2014] OJ L161; Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part [2014] OJ L260; Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part [2014] OJ L261.

214  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES clauses giving a prominent role to the judicial practice of the CJEU, and making its interpretation mandatory in the process of legislative approximation and interpretation.96 No similar obligations can be identified in the CEPA. This, however, should not lead to the immediate conclusion that the CEPA would have no impact on interaction of the Armenian judiciary with CJEU case law. The CEPA is the most ambitious agreement signed with an ENP country falling short of an association agreement. It found its legal basis in Article 37 of the Treaty on European Union (TEU) (due to the provisions on political cooperation) and a combination of Treaty on the Functioning of the European Union (TFEU) provisions, including Articles 91, 100(2), 207, 209, and the relevant procedural provisions of Article 218.97 While it was a missed opportunity for the EU to use Article 8 TEU to demonstrate that ‘special’ agreements with neighbours can take forms other than that of association, the agreement can still be viewed as a ‘special’ one. It is the most far-​reaching agreement signed with a country member of the EAEU, including the Enhanced PCA with Kazakhstan.98 In many areas, the commitments remain the same as in the cancelled Association Agreement, save for downgrading of the trade chapter to enable cooperation without the DCFTA.99 The agreement can be viewed as a manifest expression of the principle of differentiation of the ENP and the EaP,100 further emphasized in the 2015 ENP revision,101 as well as Article 8 TEU more generally.102 In the past, the EU’s application of the principle of differentiation was criticized for ‘reification of the EU norms and rules and their injection into the political space of the partner countries, at a differing pace and level’ instead of recognizing the third country’s needs.103 The CEPA, however, marks a departure from this approach by tailoring the partnership to Armenia’s needs and political circumstances,104 while still remaining faithful to the ENP’s and EaP’s promise of closer cooperation and substantive integration.

96 EU–​Ukraine Association Agreement, Art 153 in the area of public procurement; Art 264 state aid; Art 7, Annex XVII on regulatory approximation. 97 TFEU, Art 218(5) and (7) and the second para of Art 218(8). 98 Enhanced Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part [2016] OJ L29. 99 Leila Alieva, Laure Delcour, and Hrant Kostanyan, ‘EU Relations with Armenia and Azerbaijan’ European Parliament’ (2017) AFET 9. 100 See Peter Van Elsuwege, ‘Variable Geometry in the European Neighbourhood Policy:  The Principle of Differentiation and Its Consequences’ in Erwan Lannon (ed), The European Neighbourhood Policy’s Challenges (Peter Lang 2012) 59‒84; Narine Ghazaryan, ‘The Evolution of the European Neighbourhood Policy and the Consistent Evolvement of its Inconsistencies’ (2013) 7 Russian Eur Affairs Rev 1. 101 European Commission/​High Representative of the European Union for Foreign Affairs and Security Policy, Joint Communication, The Review of the European Neighbourhood Policy JOIN(2015) 50 final, Brussels, 18 November 2015, 3‒4, 15. 102 Christoph Hillion, ‘Anatomy of EU Norm Export towards the Neighbourhood: The Impact of Article 8 TEU’ in Petrov and Elsuwege (ed), Legislative Approximation (n 12) 19. 103 Elena Korosteleva, ‘Eastern Partnership:  Bringing “The Political” Back in’ (2017) 33 East Eur Politics 321, 329 104 Alieva and others (n 99) 7.

THE CJEU AND THE ARMENIAN LEGAL ORDER  215 In the Association Agreements with Ukraine, Georgia, and Moldova, the core of the approximation obligations is located in the DCFTA, whereas this is not the case in the CEPA. While the regime on free movement of goods and services is based on World Trade Organisation law,105 Armenia also made no commitments towards import of the EU competition, state aid, and public procurement acquis. The agreement, nonetheless, contains extensive approximation obligations in many areas that are compatible with Armenia’s accession to the EAEU discussed further below.106 The CEPA can also be considered to be an advanced agreement due to its sophisticated institutional framework.107 Ultimately, it has been noted by some commentators that the CEPA is expected to foster judicial cooperation between Armenia and the EU.108 This optimism can be perhaps justified in view of certain provisions of the CEPA explained below. Within the context of this evolved legal framework, the CEPA can have a certain impact on the Armenian judiciary’s awareness and attitude towards CJEU practice in a number of ways. To start with, the agreement contains two provisions mentioning the CJEU. The first provision concerns referrals to the CJEU from an arbitration panel in cases of disputes raising questions on the interpretation of the approximation provisions in postal services, communication networks, financial services, or transport services.109 These approximation provisions are contained in Articles 169, 180, 189, and 192: they are remarkable due to their weak and flexible formulation of the approximation obligations. Three of these provisions are formulated in a non-​binding manner, where ‘[t]‌he Parties recognize the importance of gradual approximation’ in the relevant area.110 The last provision at first appears to have a harder formulation (Armenia ‘shall approximate its regulation of financial services to the relevant EU acquis’), only to be completed by the phrase ‘as appropriate’, hence softening the requirement of approximation.111 If a question of interpretation of Union law relevant to these areas is necessary for the arbitration panel to make a decision, it must refer the case to the CJEU, whose rulings should be binding on the arbitration panel. It is suggested here that any subsequent dispute in the Armenian courts involving similar issues of law would be bound to follow the interpretation given by the CJEU. It is remarkable that this referral obligation is stipulated only for sectors with soft approximation obligations, whereas in areas

105 Title VI, CEPA. 106 Alieva and others (n 99) 8. 107 These include a Partnership Council meeting at ministerial level, which can examine any issue and make binding decisions. It further includes the Partnership Committee at senior official level, subcommittees, Parliamentary Partnership Committee, and a Civil Society Platform. 108 Alieva and others (n 99) 8. 109 CEPA, Art 342. 110 Art 169 on postal services, Art 180 on electronic communication networks, and Art 192 on transport services. 111 Art 189 on financial stability and regulation of financial services in the Republic of Armenia.

216  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES where hard legal obligations are prescribed,112 no such possibility of referrals can be identified. The second reference to the CJEU appears in Article 359 on recovery of EU funds unduly paid, which accords the CJEU a supervisory power in certain cases. This provision is not novel: its equivalent provisions can be found in the Association Agreements with Ukraine, Moldova, and Georgia.113 Recovery of funds from national authorities is dealt with directly between the Commission and the national authorities, involving the Partnership Council established under the Agreement in case of disputes. In case a pecuniary obligation is imposed on persons other than states, a different procedure applies involving enforcement on the basis of national civil procedure rules. The order for enforcement is to be issued by a national authority designated by the Armenian government, of which the European Commission and the CJEU should be informed. Since the rules on civil procedure are enforced by the national courts, it is possible that the government would designate a specialized court for this purpose, for instance the Court of Appeal in civil matters. The European Commission may proceed with enforcement by bringing the matter directly before the designated authority. It is here that the CJEU comes into play: the legality of the enforcement decision is subject to control by the CJEU, and enforcement can be suspended only by a CJEU decision. While the language of the provision suggests that enforcement in these specific cases is subject to mandatory review by the CJEU, it is not clear how the review is triggered. The provision adds only that the European Commission must inform the Armenian authorities of any CJEU decision to suspend enforcement. The Armenian courts, however, have the jurisdiction to hear complaints about the irregularity of the process of carrying out the enforcement decision. Even though this is a very specific action which most probably would be a rare occurrence, it has a small potential for interaction between the CJEU and the Armenian courts. At the very least, it might raise the awareness of Armenian judges as to the existence of the CJEU and its modus operandi. Beyond these references, a potential indirect impact of CJEU case law on the Armenian legal order can also be envisaged in relation to approximation obligations. As mentioned above, the CEPA contains approximation clauses in a wide range of areas. These clauses, however, demand what can be described as various shades of approximation, convergence, and harmonization.114 On the one hand is a set of provisions which can be characterized as hard legal obligations, requiring the approximation of specific legislation set out in a number of annexes.115 112 See for instance, Arts 41, 44, 50, where approximation obligations are set on the basis of annexes providing the list of relevant legislative acts in such areas as transport, energy, and environment. 113 ANNEX XLIII TO TITLE VI of the EU–​Ukraine Association Agreement, Art 8; EU–​Moldova Association Agreement, Art 430; EU–​Georgia Association Agreement, Art 400. 114 On the distinction between these concepts, see Aaron Matta, ‘Differentiating the Methods of Acquis Export: The Case of Eastern Neighbourhood and Russia’ in Petrov and Elsuwege (ed), Legislative Approximation (n 12). 115 CEPA, Arts 41, 44, 50, 56, 65, 83, 90.

THE CJEU AND THE ARMENIAN LEGAL ORDER  217 In these areas, Armenia appears to have no discretion in terms of approximating the relevant EU acquis. Here, the agreement breaks away from the PCA in a drastic manner by specifying and hardening the approximation obligations in the relevant areas. In other areas, the obligations are much softer or diverge from the concept of approximation. One set of provisions incorporating the notion of ‘recognising the importance of gradual approximation’ or approximation ‘as appropriate’ was mentioned above.116 Other manners of formulating soft obligations include ‘taking into account’ the EU acquis,117 ‘efforts towards further alignment with the EU acquis’,118 ‘promoting convergence’,119 ‘seeking to reduce differences’,120 and so on. In these ways, the agreement intends to keep the acquis on the radar of policy and legislative development in many areas without setting a specific obligation. Further soft approximation obligations are introduced in the Partnership Priorities signed between the parties in February 2018.121 In time, these hard and soft obligations might create a basis for judicial interaction. While the EU has sponsored justice reform through budgetary support, including judicial training in cooperation with the CoE,122 direct peer-​ to-​peer interaction has been limited. During the negotiation for the Association Agreement, the EU Advisory Group inter alia aimed at strengthening judicial powers by developing peer-​to-​peer relations with certain twin administrations of an EU Member State.123 No interaction with CJEU judges has been identified. With the CEPA in place, however, if vast chunks of legislation are drafted to transpose the EU acquis to the Armenian legal order, then a stronger need for understanding the origins of the law would emerge. EU law in turn is interpreted by the CJEU, whose case law would shed light on possible application of the norms of Armenian legislation which are the result of integration processes. This link, however, will be insufficient per se to radically alter the status quo. It is imperative that the factors identified above are addressed before any substantive judicial interaction is anticipated. Such factors as the general language barrier and the workload would require significant time and reform to be dealt with. Others can be addressed more immediately. The education system can be adjusted to develop a special curriculum on EU law in areas where the CEPA has established hard approximation obligations in annexes. Judicial training can be organized to enlighten the current judges on relevant CJEU practice. Legal—​including case law—​manuals can be 116 ibid Arts 169, 180, 189, 192. 117 ibid Arts 30, 106, 123. 118 ibid Art 33. 119 ibid Art 117. 120 ibid Art 130. 121 For instance, in the area of digital economy; available at accessed 4 May 2020. 122 See n 70 above. 123 Twinning and Technical assistance Facility in support of the EU–​Armenia European Neighbourhood Policy Action Plan—​CRIS no ENPI/​2009/​021-​198.

218  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES developed in Armenian to deal with the language barrier. In terms of normative imperative, the most obvious way in which CJEU case law would be introduced to the Armenian legal order is if newly adopted Armenian law stipulates a provision requiring that CJEU case law be consulted when the need for interpretation arises. However, without addressing the factors above, such an obligation will in practice be impossible for judges to comply with.

F.  Conclusion Given Armenia’s geographic proximity to the EU and its past legal approximation efforts, one would have expected a more substantive interaction between the two legal orders, including a traceable impact of CJEU jurisprudence on the Armenian legal order. However, this has proved not to be the case. The CJEU’s judicial practice is virtually absent from the Armenian legal order and jurisprudence, save for two exceptional citations by the Constitutional Court. In both cases, the Court relied on CJEU case law as part of comparative international legal practice to substantiate its judgment. Only one case appears to have an indirect link with the fact that the relevant Armenian legislation was based on EU law, even though the Court did not base its findings on this ground. It is hard to explain these exceptional references other than by the fact that the reporter in the case was the same judge. The brief explanation given by the reporting judge suggests that CJEU practice was relied upon as an example of best international practice, separate from the reality of EU–​Armenia relations. At the same time, the representative at the Constitutional Court’s Legal Advice Department confirmed that there was a general lack of awareness of CJEU jurisprudence, coupled with a reluctance to engage with it. While the Constitutional Court attempts to engage in comparative constitutional jurisprudence otherwise, there is much less willingness to examine foreign judgments or foreign law among the judges of the courts comprising the judicial system. It is hard to attribute this trend to one particular factor, although the factors summarized in the following paragraph would certainly contribute to such a trend. No impact of CJEU case law can be traced beyond the judiciary either. A combination of factors explains this state of affairs. Among the first group of factors, legal education, the language barrier, the workload, and the lack of international outlook on the part of the judges should be mentioned. The second most important factor explaining the absence of CJEU impact is the low intensity and status of EU–​Armenia bilateral relations prior to the CEPA, characterized for the most part by weak legal cooperation and acquis transposition. The level of cooperation between the EU and Armenia, even through the ENP, did not reach such proximity as to generate formal links between the two legal orders. The absence of any obligation on Armenian judges and practitioners to follow EU law explains the lack of traceable impact of CJEU case law on the Armenian legal order. Even

THE CJEU AND THE ARMENIAN LEGAL ORDER  219 though the process of negotiating the Association Agreement witnessed significant approximation efforts in the country, this was too short-​lived to have trickled down to judicial practice in the form of interaction with CJEU case law. Interaction with CJEU jurisprudence in Armenia might be beneficial for a number of reasons. In areas where legislation and other regulations are designed with EU law in mind, it might be illustrative to seek an interpretation of the original sources in CJEU case law where relevant. The CJEU is a leading regional court resolving cases, often constitutional in nature, involving the rights of citizens. Tapping into this practice would enhance the pool of expertise of Armenian judges. For instance, the new Armenian Law on Personal Data Protection referred to in section D does not incorporate ‘a right to be forgotten’.124 Potential familiarity with CJEU case law, however, might help Armenian judges to read such a right into the law. Another reason why interaction with CJEU case law could be desirable lies in the learning experience that this might entail in relation to improved reasoning and judicial techniques. The CEPA opens new prospects for EU–​Armenia cooperation, including in terms of legal and judicial interaction. Since the signature of the CEPA, the so-​called ‘Velvet Revolution’ has taken place in Armenia in spring 2018. Nikol Pashinyan, an opposition member of the national parliament, toppled the long-​ruling Serzh Sargsyan as prime minister after peaceful mass protests had galvanized Armenian society.125 While insisting that the change of power does not indicate any change in relations with Russia, Pashinyan expressed his desire to forge closer links with the EU on the basis of the CEPA, wishing for swift ratification of the agreement, enhanced assistance, and visa liberalization.126 In a move welcomed by the EU, an ambitious roadmap for CEPA’s implementation was adopted by the Armenian government in June 2019.127 The CEPA’s potential to foster judicial interaction will ultimately depend on the fate of the agreement and the prominence EU law acquires in the Armenian legal order, coupled with elimination of the obstacles identified above.

124 Case C-​131/​12 Google Spain [2013] (ECLI:EU:C:2013:424). 125 Having served two exhaustive terms as President, Serzh Sargsyan became the first Prime Minister following constitutional amendments turning Armenia into a parliamentary republic, safeguarding his continuous rule, as the party led by Sargsyan held the majority in the Parliament. This in turn triggered mass protests across the country; ‘Why Armenia’s “Velvet Revolution” Won without a Bullet Fired’ (2018) BBC, 1 May; ‘Thousands Celebrate as Armenia’s Longtime Ruler Sarkisian Steps Down’ (2018) RFE, 23 April. 126 ‘Armenia’s Revolutionary PM: “Deepened Relations with EU” on Agenda’ (2018) Euractiv, 9 May; ‘HR/​VP Federica Mogherini Meets with Armenian Prime Minister Nikol Pashinyan’ (2018) press release, Brussels, 11 July. 127 ‘Joint Press Statement following the Second Partnership Council Meeting between the EU and Armenia’ (2019) 13 June.

10

The Impact of the Court of Justice of the European Union on Azerbaijan Azar Aliyev

A.  The Legal System of Azerbaijan Azerbaijan proclaimed its independence as the first democratic republic of the Muslim world on 28 May 1918. Just twenty-​three months later, following intervention by the XI Red Army, Azerbaijan became part of the Soviet Union.1 The modern Republic of Azerbaijan understands itself as successor to the Azerbaijan Democratic Republic of 1918‒20. The Constitutional Act of 18 October 19912 restored the independence of Azerbaijan. The current Constitution of Azerbaijan was adopted on 12 November 19953 in a national referendum. Azerbaijan is a democratic, secular, unitary Republic.4 Separation of powers is laid down by the Constitution. Legislative power is exercised by the Milli Majlis (parliament), executive power is held by the President, and the judicial branch includes all ordinary and special courts. Azerbaijan is a semi-​presidential Republic:  the Cabinet of Ministers is nominated by the President with consent of the Parliament5 and the Parliament can remove the Cabinet by impeachment.6 The Constitution has been amended several times.7 1 The most recent study of this period is Jamil Hasanli, Foreign Policy of the Republic of Azerbaijan: The Difficult Road to Western Integration, 1918–​1920 (Routledge 2016). 2 The Constitutional Act on The State Independence of the Republic of Azerbaijan (‘Azərbaycan Respublikasının dövlət müstəqilliyi haqqında Konstitusiya Aktı’) accessed 4 May 2020; available in English at accessed 4 May 2020. 3 Constitution of the Azerbaijan Republic, adopted by a referendum of Azerbaijan Republic on 12 November 1995, came into force on 27 November 1995  accessed 4 May 2020; available in English at accessed 4 May 2020. 4 Constitution of the Azerbaijan Republic, Art 7 (1). 5 Constitution of the Azerbaijan Republic, Art 118(1). 6 ibid Art 95(1)(14). 7 2002 amendments in Azerbaijani accessed 4 May 2020. 2009 amendments in Azerbaijani accessed 4 May 2020. 2009 amendments in English: European Commission for Democracy Through Law (Venice Commission), Opinion 518/2008 CDL(2009)025 . accessed 4 May 2020. 2016 amendments in Azerbaijani accessed 4 May 2020. 2016 amendments in English: European Commission for Democracy Through Law (Venice Commission), Opinion 864/2016 CDL-REF(2016)054-e accessed 4 May 2020. Azar Aliyev, The Impact of the Court of Justice of the European Union on Azerbaijan In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0010.

THE IMPACT OF THE CJEU ON AZERBAIJAN  221 The amendments were partly criticized by the Venice Commission, an advisory body of the Council of Europe,8 in particular with regard to regulations on parliamentary elections and extension of the president’s power and tenure.9 Elections in Azerbaijan have been criticized by international organizations, in particular by the Organization for Security and Cooperation in Europe (OSCE), as non-​ democratic and unduly influenced. After years of tensions, Azerbaijan first downgraded the OSCE office in Baku to the project coordinator’s office in 2014, and then closed it in 2015.10 The last parliamentary elections were carried out without OSCE observers.11 However, cooperation between the OSCE and Azerbaijan is now restored: the OSCE Office for Democratic Institutions and Human Rights (ODIHR) mission observed the early presidential elections on 11 April 2018. The final report was critical.12 Azerbaijan is a Member State of the Council of Europe and of the European Convention on Human Rights (ECHR). The accession of Azerbaijan to the Council of Europe was controversially discussed back in the 1990s,13 but despite the criticism, Azerbaijan became a full member of the Council of Europe on 25 January 2001. Relations between the Council of Europe and Azerbaijan could be described as a chain of more and less strained periods. The most sensitive points in these relations are freedom of the media and arrests of political opponents.14 The most recent conflict—​on the non-​execution of the European Court of Human Rights (ECtHR) decision in the Ilgar Mammadov case15—​led to unprecedented action by the Committee of Ministers, namely execution proceedings under ECHR Article 46(4), which were launched in the ECtHR. Some authors noted that the ECtHR 8 The formal name of this body is the European Commission for Democracy through Law, established in 1990, after the fall of the Berlin Wall, to assist Central and Eastern European countries with constitutional reform. 9 2016 amendments accessed 4 May 2020. 2009 amendments accessed 4 May 2020. 10 The office was closed after the OSCE did not renew its contract with the project coordinator Alexis Shachtachtinski, who had previously been severely criticized by the US ambassador to the OSCE for photographs with President Aliyev. The OSCE’s denial of a connection between criticism by the US ambassador and the expiration of Shachtachtinski’s contract was not accepted by Azerbaijan. The presidential office accused OSCE of double standards. Carl Schreck, ‘Azerbaijan Orders OSCE to Close Baku Office’ (5 June 2015) RFERL accessed 4 May 2020. 11 ‘Restrictions Imposed by Azerbaijan Compel Cancellation of Parliamentary Election Observation Mission, Says ODIHR Director Link’ (11 September 2015) OSCE accessed 4 May 2020. 12 See accessed 4 May 2020. 13 Denis Huber, ‘A Decade which Made History—​The Council of Europe 1989‒1999’ (1999) Council of Europe accessed 4 May 2020. 14 Nils Muižnieks, ‘The Future of Human Rights Protection in Europe’ (2013) 24 Security and Human Rights 43, 44. 15 ‘Ilgar Mammadov Case: Council of Europe Notifies Azerbaijan of Intention to Launch a Special Procedure for the Execution of the Judgment’ (25 October 2017) Council of Europe accessed 4 May 2020.

222  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES has experienced certain problems with enforcement of its decisions,16 but the first Article 46(4) case was launched against Azerbaijan because both the Mammadov case at issue and Azerbaijan as a respondent state served as a convenient case to create a precedent.17 The Grand Chamber decided unanimously against Azerbaijan18 and the case was referred to the Committee of Ministers, which will consider applicable measures in accordance with Article 46(5). These tensions notwithstanding, relations between Azerbaijan and the European institutions seem to be improving. Ilgar Mammadov was released conditionally on 13 August 2018. This step was welcomed by the Council of Europe, although the Council demanded unconditional execution of the ECtHR judgments.19 The Supreme Court of Azerbaijan awarded the compensation of 234.000 AZN (approx. 125.000 Euro) and de facto executed the ECtHT judgment.20 All the major conflicts are currently mitigated, which opens new cooperation prospective. Azerbaijan is also currently negotiating a new Partnership Agreement with the European Commission, as is discussed in section B.21 Despite all the tensions, membership in the Council of Europe has strongly impacted the legal system of Azerbaijan. In particular, ECtHR jurisprudence has influenced the Azerbaijani court system and legal culture in that the Constitutional Court of Azerbaijan has adopted the structure and argumentation concepts of ECtHR decisions. In addition, direct application of international treaties in Azerbaijan enables direct references to the ECHR and to ECtHR jurisprudence in local court proceedings. Moreover, human rights courses form an integral part of legal education in Azerbaijan.

16 For instance, Sejdić and Finci v Bosnia and Herzegovina App nos 27996/​06 and 34836/​06 (ECtHR, 22 December 2009); OAO Neftyanaya Kompaniya Yukos v Russia App no 14902/​04 (ECtHR, 31 July 2014); Anchugov and Gladkov v Russia App nos 11157/​04 and 15162/​05 (ECtHR, 04 July 2013). On Russia’s reluctance to enforce ECtHR decisions, see Azar Aliyev, ‘Decision of the Russian Constitutional Court on Enforcement of the Yukos Judgement: The Chasm Becoming Deeper’ (2018) EHRLR 6 578–​88. 17 Julie-​Enni Zastrow and Andreas Zimmermann, ‘Council of Europe’s Committee of Ministers Starts Infringement Proceedings in Mammadov v Azerbaijan: A Victory for the International Rule of Law?’ (12 February 2018) EJIL: Talk! accessed 4 May 2020. 18 Ilgar Mammadov v Azerbaijan App no 15172/​13 (ECtHR, 29 May 2019). 19 ‘Statement by Secretary General Thorbjørn Jagland on the Release of Human Rights Defender Ilgar Mammadov in Azerbaijan’ (13 August 2018) Council of Europe accessed 4 May  2020. 20 Statement by Secretary General Marija Pejčinović Burić: acquittal of Ilgar Mammadov and Rasul Jafarov is to be welcomed (20 April 2020)  Council of Europe 21 Ilgar Gurbanov, ‘Strategic Partnership Agreement: A New Chapter in EU–​Azerbaijan Relations’ (2017) 14 Eurasia Daily Monitor accessed 4 May  2020.

THE IMPACT OF THE CJEU ON AZERBAIJAN  223

B.  Relations with the European Union Relations between Azerbaijan and the European Union (EU) have roots back in the early 1990s. The legal basis for broader cooperation was laid down in the EU–​ Azerbaijan Partnership and Cooperation Agreement of 1999.22 Azerbaijan is part of the European Neighbourhood Policy (ENP), and since 2009 has been a member of the Eastern Partnership Programme (EaP).23 The first attempt to sign a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU failed in 2014. Azerbaijan, as an oil-​rich country, was not ready to accept the standard liberal provisions on trade policy of the EU DCFTA, which was designed for other partner states with different economic structures. Another critical point was the Nagorny–​ Karabakh conflict with Armenia and recognition of the territorial integrity of Azerbaijan.24 The EU reviewed the EaP in 2015.25 This is now a flexible instrument, which allows significant differences in cooperation strategies with different countries. Based on the new EaP, in November 2016 the Council adopted a new mandate for negotiating a comprehensive Agreement with Azerbaijan. Negotiations were launched in February 2017.26 Although the parties failed to reach an outcome in 2018, as was initially planned,27 the negotiations remain ongoing, though they are confidential, so no materials are publicly available. However, areas of current cooperation will remain in the focus of any future agreement. We can be sure that human rights and justice issues will remain core cooperation areas for the future after the new Agreement. One of the current projects of the EU is devoted to the development of alternative dispute settlement instruments in the state court system of Azerbaijan.28 Additionally, science and education are important areas of 22 Partnership and Cooperation Agreement between the European Communities and their member states, of the one part, and the Republic of Azerbaijan, of the other part accessed 4 May 2020. 23 Even though Azerbaijan’s membership in the EU was never discussed, Azerbaijan became a member of the ENP, which was initially thought of as a pre-​accession phase. Bertyl Nygren, ‘The EU’s Democratic Norm Project for Eurasia: Will Beauty Tame the Beast?’ in Kjel Engelbrekt and Jan Hallenberg, The European Union and Strategy: An Emerging Actor (Routledge 2008) 111, 119. 24 Vano Chkhikvadze, ‘The South Caucasus and the EU—​Different Paths for Each Country’ (18 November 2016) accessed 4 May 2020. 25 ‘Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—​Review of the European Neighbourhood Policy’ (18 October 2015) EEAS accessed 4 May  2020. 26 ‘EU Relations with Azerbaijan Date Back to 1991 and Are Based on the EU–​Azerbaijan Partnership and Cooperation Agreement’ (1 November 2017) EEAS accessed 4 May 2020. 27 ‘Negotiations on New Agreement between EU and Azerbaijan not to End Soon’ (12 December 2017) Turan accessed 4 May 2020. 28 Commission Implementing Decision of 20 July 2016 on the Annual Action Programme 2016 in favour of the Republic of Azerbaijan to be financed from the general budget of the European Union,

224  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES cooperation. More than 1,500 Azerbaijani students and lecturers visited the EU in the framework of the Erasmus+ programme during 2016. Azerbaijan is an important partner of the EU in the energy trade. Oil, and especially gas imports from Azerbaijan and possibly from Central Asia via Azerbaijan are important elements of the energy market diversification policy of the EU.29 Azerbaijan has succeeded in developing important regional infrastructure projects, especially the Baku–​Tbilisi–​Ceyhan oil pipeline and the Baku–​Tbilisi–​Erzurum gas pipeline (part of the Southern Gas Corridor), and has become an important player for the European energy market. The developed pipeline infrastructure can effectively be used for transportation of hydrocarbons from Kazakhstan and Turkmenistan to Europe, which could provide a viable alternative to supplies from Russia.30 Besides the pipeline infrastructure, Azerbaijan has invested substantially in the development of transport networks. The Baku–​Tbilisi–​Kars31 and Iran–​ Azerbaijan–​Russia Railways were developed over the past decade.32 These projects provide a speedy rail link between Asia (including India and China) and the European continent, which saves weeks as against sea transportation. All these international projects require a reliable legal framework and a functioning judicial system.

C.  Structure and Function of the Judiciary The Judiciary of Azerbaijan is mainly regulated by Chapter VII of the Constitution, as well as the Constitutional Law33 on the Constitutional Court34 and the Constitutional Law on Courts and Judges.35 The Judiciary of Azerbaijan consists of C(2016)4859 final, 12  accessed 4 May  2020. 29 ‘EU Energy Independence, Security of Supply and Diversification of Sources’ (6 February 2017) European Parliament, 8, 12 accessed 4 May 2020. 30 See accessed 29 May 2020. 31 Elshan Mahmud Hajizadeh, ‘ “Baku-​Tbilisi-​Kars” Project’ (September 2015) Research Gate accessed 4 May  2020. 32 ‘Iran–​Azerbaijan Railroads Officially Linked on March 29’ (2 April 2018) Financial Tribune accessed 4 May  2020. 33 A Constitutional Law is a special type of legal act with higher status than other laws. It is considered an integral part of the Constitution and needs 75 per cent of the Parliament to enact or amend it (Part V of the Constitution, Art 156). 34 Law no 561-​IIQ, 23 December 2003  ‘On the Constitutional Court’ (‘Konstitusiya Məhkəməsi haqqında’) accessed 4 May 2020, unofficial translation in English accessed 4 May 2020. 35 Law no 310-​IQ, 10 June 1997  ‘On courts and judges’ (‘Məhkəmələr və hakimlər haqqında’) accessed 4 May 2020; unofficial translation in English accessed 4 May 2020.

THE IMPACT OF THE CJEU ON AZERBAIJAN  225 the Constitutional Court, the Supreme Court, six Appeal Courts and first-​instance courts of the ordinary (district and city), military, administrative-​economic, and grave crimes36 courts. The Appeal Courts and the Supreme Court consist of specialized panels for civil, criminal, administrative-​economic, and military issues. The panel structure of the Supreme Court reflects the structure of the first-​instance courts. The Judiciary of Azerbaijan is a mixture of post-​Soviet and Western European—​ in particular German—​models. Azerbaijan retained from the Soviet model the differentiation between ordinary, economic, and special military courts. On the other hand, following the German model of special administrative jurisdiction (Verwaltungsgerichtsbarkeit), Azerbaijan has introduced new rules for proceedings in administrative cases.37 However, administrative justice was structurally attached to the economic courts, which were renamed as economic-​administrative courts. This attachment was dissolved in the framework of the recent court reforms:  economic administrative courts were split into Commercial Courts and Administrative Courts.38 Reforms of the court system have been ongoing since the declaration of sovereignty in 1991. Progress in many areas is evident; however, the inherent structural problems of judiciaries in transition are yet to be resolved.39 On the positive side, one can mention huge improvements in infrastructure: all the courts of Azerbaijan reside in modern buildings and are quite well equipped. The transparent and competitive selection of judges is also an important step towards qualitative justice. Active cooperation by the judiciary with international organizations—​in particular with the World Bank, the EU, and the Council of Europe (especially the Commission for the Efficiency of Justice—​CEPEJ)—​provides important impetus for reforms. On the negative side, international reports mostly mention corruption and strong influence from the executive power within the Judicial Legal Council—​ a self-​governing body of Azerbaijani judges and courts.40 However, other less political issues are impacting the court system of Azerbaijan even more severely.

36 The Court calls itself the Court on grave crimes:  accessed 4 May 2020. 37 Administrative Procedural Code of AR (‘Azərbaycan Respublikasının İnzibati Prosessual Məcəlləsi’) accessed 4 May 2020; available in English at accessed 4 May 2020; entered into force via Law no 846-​ IIIQ of 30 June 2009  accessed 4 May 2020. 38 Law no 1632-​VQD, 9 July 2019 ‘On amendments to the Law on “On courts and judges” from (‘Məhkəmələr və hakimlər haqqında’) (Konstitusiya Məhkəməsi haqqında) accessed 4 May 2020. 39 GRECO Evaluation Report—​Azerbaijan IV, 10 October 2014  accessed 4 May 2020. 40 ibid 51‒52; Helsinki Foundation of Human Rights, ‘The Functioning of the Judicial System in Azerbaijan and Its Impact on the Right to a Fair Trial of Human Rights Defenders’ (September 2016) 22ff accessed 4 May 2020.

226  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The Azerbaijani courts, in particular those of first instance, are overloaded. More than 450,000 new cases were registered in 2016; these have to be decided by only 509 judges of all instances.41 Although many of these are small claims or uncontested civil enforcement cases (eg non-​payment of mobile operator bills), judges still spend considerable time managing these cases. Court practice is quite strongly concentrated on several types of dispute. Next to litigious divorce cases (about 18,000 cases),42 disputes based on consumer credit contracts and respective securities,43 as well as on real estate contracts (in particular development contracts), can be mentioned.44 Some first-​instance judges in civil matters have to decide more than 3,000 cases annually. The situation is aggravated by fixed procedural time limits, as well as lack of financial and human assistance resources. Furthermore, Azerbaijani judges have very restricted procedural instruments which could support settlement of disputes by compromise: for example, any kind of case prognosis by a judge publicly during the proceedings is qualified as biased conduct and may lead to disciplinary measures. At the same time, very low costs of proceedings and restricted reimbursement of procedural costs by the losing party encourage parties to carry disputes to the bitter end.45 In short, to be a judge is a hard job in Azerbaijan. Despite high social status and relatively high income, the profession is currently losing its attraction. In particular, lawyers with foreign language skills and an international background prefer other legal professions. In the current situation, judges in Azerbaijan, even those that are potentially able to use foreign jurisprudence (only a small portion of 41 CEPEJ, ‘CEPEJ Report 2016–​18 Azerbaijan’ (29 August 2018) 30–​36  accessed 4 May 2020. 42 ibid 35. 43 Consumer credits in USD were very common in Azerbaijan before 2014, as the national currency—​the Azerbaijani manat (AZN)—​was stable for more than a decade; see accessed 4 May 2020. The problem arose as the AZN fell in value by 50 per cent within a year, see Kamala Hashimova, ‘The Effect of Oil Price Fluctuations on the Exchange Rate of the National Currency of Azerbaijan: Assessment of the Years 2014–​2017’ (December 2014) accessed 4 May 2020. The vast majority of debtors were not able to service their credits. In 2018, the Government launched the Program for re-​structuring of consumer credits, see Decree of the President of the Republic of Azerbaijan, no 551, 28 February 2019 ‘On additional measures to solve non-​performing loans of individuals in the Republic of Azerbaijan’ (‘Azərbaycan Respublikasında fiziki şəxslərin problemli kreditlərinin həlli ilə bağlı əlavə tədbirlər haqqında’) accessed 4 May 2020. 44 The construction boom in Baku started from the end of the 1990s and early 2000s. Construction activities were not regulated properly. Public registration of real estate was possible only after commissioning. This regulation gap enabled fraudulent business models: the same space was sold to numerous customers. The Government addressed the problem quite late. Registration of preliminary rights upon developed real estate in the public register is now prescribed in the Civil Code, Art 147, Law no 918-​ VQD, 15 December 2017  ‘On amendments to the Civil Code of AR’ (‘Azərbaycan Respublikasının Mülki Məcəlləsinə dəyişikliklərin edilməsi haqqında’) accessed 4 May 2020. 45 The costs of filing a claim vary from EUR 10 to EUR 20. According to Art 121 of the Civil Procedural Code of Azerbaijan, only reimbursement of reasonable fees for legal aid received by the prevailing party is possible.

THE IMPACT OF THE CJEU ON AZERBAIJAN  227 judges is fluent in English) or any other EU language, have de facto no time to study and use foreign jurisprudence. The development of an e-​court system46 and the introduction of electronically processed uncontested civil enforcement cases,47 as well as of small claims proceedings,48 could partly mitigate the situation. However, fundamental relief is possible only in case of reform of procedural rules that would stimulate parties to settle their disputes amicably. Other challenges are caused by highly intensive reforms of legislation. All main codifications and laws of Azerbaijan have entered into force within the past eighteen years:49 a completely new legal system has been created. New areas of law were developed within a few years (eg administrative law and administrative procedure). Unfortunately, legal education and capacity-​building programmes for lawyers remained far behind this explosive development of the legal framework: the majority of lawyers were not prepared for working with the new legislation. Judges, however, were in the most privileged position and could enjoy special treatment in regard to capacity-​building programmes. The result of the education and knowledge gap is quite a low professional level of lawyers in general. At the same time, the qualification requirements for representing clients in courts were very liberal until 2017. Anybody could represent the interests of another person in courts in civil, economic, and administrative matters; bar qualification was required only for criminal cases and representation before the Supreme Court.50 Since 2017, only bar members have rights of audience in court representation. The only exception is representation of legal entities by their employees. The reform has caused serious problems for the court system. The Azerbaijan bar association had less than 1,000 members,51 which was totally insufficient to represent interests in more than 450,000 cases filed in the courts annually.52 The bar association therefore carried out new recruitment campaigns. The bar exams are transparent and competitive, although the passing score in the last recruitment round was decreased from 70 per

46 In 2017, the Court management system of Azerbaijan was awarded with special mention of CEPEJ: ‘Crystal Scales of Justice’ accessed 4 May 2020. 47 ‘Automating Processing of Uncontested Civil Cases to Reduce Court Backlogs in Azerbaijan’ World Bank Group. Improving Public Sector through Innovation and Inter-​Agency Coordination: Case Study 14  accessed 29 May 2020. 48 Law no 1436-​VQD, 28 December 2018  ‘On amendments to the Civil Procedural Code of AR’ (‘Azərbaycan Respublikasının Mülki Prosessual Məcəlləsində dəyişiklik edilməsi barədə’) accessed 4 May 2020. 49 The process was launched by the entry into force of the Civil Code, Criminal Code, and Criminal Procedural Code on 1 September 2000. 50 The Law on ‘Advocates and advocacy’ and the Civil Procedural Code were amended on 31 October 2017. 51 ‘One Year Activity of Lawyers College in Digits’ (7 December 2018) (in Azerbaijani) accessed 4 May 2020. 52 CEPEJ (n 40).

228  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES cent to 50 per cent. At the same time, the controversial quality of exam questions is discussed within the legal community. The next large-​scale reform of the judicial system was launched in April 2019 by presidential decree,53 which contains a long list of specific measures, including improving the situation of judges (both financially and organizationally), development of e-​justice, and reforms of procedural legislation. The envisaged reforms are ambitious and challenging. However, Azerbaijan can already boast a record of large-​scale successful reforms of public services back in 2012, as the State Agency for Public Service and Social Innovations under the President of the Republic of Azerbaijan was established. Before the reforms, the public services system was in the main corrupt and inefficient. Within only a few years, a new, highly effective, and very user-​friendly system has been developed. New centres for public services (‘ASAN service’ centres54) established across the country provide a wide range of public services using up-​to-​the-​minute solutions (eg a single-​window approach, use of existing data by public authorities). ‘ASAN service’ centres won the United Nations Public Service Award in 2015.55 The reforms of the judicial system are much more complicated than improving the mostly algorithmic administrative proceedings. The main results of the reforms, despite corruption, will be visible only in the medium-​to-​long term, and only if legal education and capacity building are improved.

D.  The Legislation of Azerbaijan Azerbaijan is a continental law jurisdiction under very strong influence from the German and Russian legal systems. As in all post-​Soviet countries, the vast majority of Azerbaijani lawyers in the early 1990s were fluent in Russian and had studied law based on Soviet textbooks. Even today, many lawyers in Azerbaijan speak no foreign language other than Russian. As a result, Russian legal literature remains an important source for Azerbaijani lawyers. However, it was not Russian, but European—​and especially German—​law that became the most important source of law reception for a sovereign Azerbaijan. The role of European Union projects, the World Bank, the United States Agency for International Development (USAID), and especially the Rule of Law project of the GtZ (Gesellschaft für technische 53 Decree of the President of the Republic of Azerbaijan, no 604, 3 April 2019 ‘On deepening of reforms in the judicial-​legal system’ (‘Məhkəmə-​hüquq sistemində islahatların dərinləşdirilməsi haqqında’) accessed 4 May 2020. 54 ASAN stands for Azerbaijan Service and Assessment Network and the abbreviated version means ‘easy’ in Azerbaijani. 55 ‘”ASAN Service” is the winner of the 2015 United Nations Public Service Award’ ASAN Service (12 May 2015)  accessed 29 May 2020.

THE IMPACT OF THE CJEU ON AZERBAIJAN  229 Zusammenarbeit, now GIZ—​Gesellschaft für Internationale Zusammenarbeit) for the development of a new legal system for Azerbaijan cannot be overestimated.56 However, the involvement of international experts in national legislative proceedings in general was accompanied neither by long-​term educational and capacity-​ building programmes, nor by fundamental reforms of legal education. At best, new legal concepts and institutes were presented in capacity-​building programmes for specific groups of lawyers. These shortcomings can be exemplified by two core legal acts: the Civil Code and the Law on Administrative Proceedings. The Civil Code of Azerbaijan was drafted by German experts within European Commission Technical Assistance to the Commonwealth of Independent States (CIS) and Georgia (EC TACIS) project.57 The Azerbaijani legal community, in particular academia, was deeply sceptical about the proposed Draft, which was based on European and German law. The concepts and solutions of the Model Civil Code of the CIS58 were much more familiar to any Azerbaijani lawyer. The EC TACIS project was about to expire; there was no possibility of continuing the controversial discussions within the local legal community. Political pressure to provide a draft was intense, and many compromises were made. At the end of the day, the Civil Code of Azerbaijan contained both European (German) and CIS norms in many issues. One prominent example is the norms on protection of unequal contract partners. On the one hand, the Civil Code contains provisions on standard terms,59 which are based on the German concept of Allgemeine Geschäftsbedingungen60 and the European Unfair Terms in Consumer Contracts Directive.61 On the other hand, before 2003 the Civil Code of Azerbaijan, in dealing with ‘Adhesion Contracts’,62 followed the Model CIS Civil Code concept of adhesion contracts, which are still in force in many post-​Soviet countries. These two concepts were conflicting, and cannot be used at the same time. This conflict—​as indeed many others caused by the compromise between the

56 So far the project office of the GIZ in Baku is in the premises of the Constitutional Court of Azerbaijan. For details of support by Germany to legal reforms in Azerbaijan, see Christian Heuser, ‘Detusche Rechtsreformberatung zur Unterstützung der Systemtransformation in der Republik Aserbaidschan’ (2017) Berliner Wissenscahfts-​Verlag accessed 4 May 2020. 57 Mary Betley, Andrew Bird, and Mauro Napodano, ‘Evaluation of EC Tacis Country Strategy: Azerbaijan 1996–​1999’ (March 2000) accessed 29 May 2020. 58 The Model Code was the basis for the civil codes of the majority of the post-​Soviet countries. Only Georgia, Turkmenistan, partly Azerbaijan and Moldova followed the German BGB. 59 Civil Code of the Azerbaijan Republic: Approved by the Law of the Azerbaijan Republic. Law no 779-​IG, 28 December 1999, Art 418–​20 (Civil Code of the Azerbaijan Republic) accessed 4 May  2020. 60 Bürgerliches Gesetzbuch BGBl I S 42, 2909; 2003 I S 738 2 January 2002, sec 305 ff ​accessed 4 May 2020. 61 See accessed 4 May 2020. 62 Civil Code of the Azerbaijan Republic, Art 401.

230  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES European (German) and the CIS Civil Code models—​was partly solved by the Civil Code Reform of 2003,63 in which the Article 401 ‘Adhesion Contract’ was repealed. Additionally, in the following reforms Azerbaijan consequently approximated its laws to European (German) legislation. However, the amendments to legislation did not cause substantial changes in court practice. The concept of standard terms was not accepted by the Azerbaijani legal community. If in the European Union the provisions on Unfair Contract Terms are broadly used as an effective consumer protection instrument, in the Azerbaijani Civil Code,64 they are de facto absent in court practice. Another example is reforms of administrative law and proceedings. In the early 2000s, Azerbaijan launched a project on development of administrative law with the support of the GtZ.65 The Law on Administrative Proceedings66 and the Administrative Procedural Code67 entered into force in 2011. In the meantime, new judges were recruited and trained in administrative law and procedure. German experts were involved in the training process. However, these capacity-​ building measures were not extended to public officials and other lawyers, and academic programmes in the law faculties were not developed. In the following years, some activities were carried out to fill the gap: some books and papers on Azerbaijani administrative law and procedure were published;68 a German lecturer gave lectures on administrative law and proceedings in the Law Faculty of Baku State University, and numerous capacity-​building seminars were organized. Despite these measures, the knowledge and understanding of administrative law among most Azerbaijani lawyers is still deficient. The political decision in favour of the European (German) legal system is not enough to achieve real approximation. Even adoption of legislation based on European models provides no guarantee for the functioning of the system. The need to refer to European jurisprudence and academia will arise as soon as European models evolve from law in books to law in action.

63 Law no 556-​IIQD, 23 December 2003 ‘On amendments to the Civil Code of AR’ (‘Azərbaycan Respublikasının Mülki Məcəlləsinə əlavələrin və dəyişikliklərin edilməsi haqqında’) accessed 4 May 2020. 64 Civil Code of the Azerbaijan Republic. 65 ‘Implementing Administrative Justice Reforms in the South Caucasus:  Georgia, Armenia, and Azerbaijan, 1999–​2015’ (September 2016) Case study, GDI, 8 accessed 4 May 2020. 66 Law no 1036 IIQ, 21 October 2005 ‘On Administrative Proceedings’ (‘İnzibati icraat haqqında’) accessed 4 May 2020. 67 See Law no 1632-​VQD (n 37). 68 For instance, Peter Yakob, Ilqar Hüseynov, and Müşfiq Məmmədov, ‘İnzibati işlər üzrə kazuslar və qərar nümunələri’ (‘Cases and Template Decisions on Azerbaijani Administrative Law’) (2015) accessed 4 May 2020; Anya Köniqsmann, Azərbaycanda inzibati məhkəmə icraatı (Administrative Court Proceedings in Azerbaijan) (Hüquq ədəbiyyatı 2013).

THE IMPACT OF THE CJEU ON AZERBAIJAN  231

E.  Academia and Legal Education Azerbaijani science and education was severely damaged in the 1990s. Even the oil boom of the 2000s could not improve the situation. On the contrary, talented young lawyers were in demand in the private sector and they had no interest in remaining in the law schools. However, the situation is changing slowly but steadily. Many practitioners are interested in academic activities. Nevertheless, the topics of research are mostly highly specialized, for example oil and gas law and international maritime law. In the meantime, the fundamental areas of domestic law (civil law and procedure, administrative law and procedure) remain without sufficient scholarly treatment. Interest in EU law is now quite high. The State Education Standard for legal education has since 2014 prescribed European law as a mandatory course for legal education at the bachelor level.69 Usually, several units of the course deal with the Council of Europe, but the majority of the course is devoted to EU law. The oldest and biggest law school in Azerbaijan, the Law Faculty of Baku State University, has developed a joint-​degree masters programme in EU law together with the University of Würzburg.70 However, studies are predominantly focused on institutional issues and the external dimension of the EU. Most of the researchers dealing with European law are specialized in public international law. The impact and implementation of EU law on different areas of national legal systems of the EU Member States (eg civil law, competition law) as well as comparative studies on EU law and Azerbaijani law, are not usually studied. Another important development of the recent decade is that Russian is losing its position as the lingua franca. Many students do not speak any Russian, but rather English. This means that within a decade most lawyers in Azerbaijan will be fluent in English and, moreover, that English sources, including the jurisprudence of the Court of Justice of the European Union (CJEU), will become increasingly important as reference models.

F.  The Role of Foreign and International Law International treaties of Azerbaijan are integral parts of Azerbaijani legislation71 and in the hierarchy of the Azerbaijani legislation are placed between the 69 State Education Standards are enacted by the Ministry of Education of Azerbaijan and contain mandatory minimal requirements for all education programmes. State Education Standard for Education in Law for Bachelor degree enacted by Decree 913 of the Ministry of Education of the Republic of Azerbaijan, 22 August 2014, stipulates a mandatory 4 ECTS course on European law. 70 ‘BSU Graduates Presented Dual Diplomas of Baku State University and University of Wurzburg’ (16 January 2018) BSU ​accessed 4 May 2020. 71 Constitution of the Azerbaijan Republic, Art 148(2).

232  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Constitution and Constitutional Laws of Azerbaijan, on the one side, and ‘ordinary laws’ on the other.72 Azerbaijan follows the restricted monist doctrine of international law.73 Parties to a dispute can directly refer to the international treaties of Azerbaijan in Azerbaijani courts. In court practice, references to the ECHR and to the jurisprudence of the ECtHR are quite usual. In particular, the Constitutional Court of Azerbaijan often refers in its decisions to ECtHR jurisprudence.74

G.  Precedent Law in Azerbaijan Azerbaijan as a continental law jurisdiction does not acknowledge precedent as a source of law. However, at least two exceptions to this general rule allow for normative or semi-​normative power of court decisions.

1.  Decisions of national courts On the one hand, the decisions of the Constitutional Court of Azerbaijan on abstract control of legal acts are qualified75 as normative acts. This means that these decisions of the Constitutional Court are mandatory for all. On the other hand, the Constitutional Court and the Supreme Court are competent to give interpretations of norms which formally are not normative but de facto are highly regarded in court practice. The Constitutional Court interprets constitutional norms and laws with regard to matters concerning implementation of human rights and freedoms76 and the Plenum of the Supreme Court consolidates court practice and interprets legal norms. Academia points out that precedents are gaining in importance in court practice and is trying to develop a theoretical basis for this development.77 In the past decade, the Constitutional Court ever more actively intervenes in all controversial issues, whereas the Supreme Court is much more cautious. The Constitutional Court seems to be assuming the role of a supervisory court. Although this development is alarming,78 activity by the Constitutional Court was 72 ibid Art 151. 73 According to Art 8 of the ‘Law on conclusion, enforcement and termination of international agreements of Azerbaijan’, international agreements must be ratified by the Parliament in order to have legal force in Azerbaijan, in Azerbaijani:  accessed 4 May 2020. 74 In 2017, twelve out of twenty-​four Decisions of the Constitutional Court of Azerbaijan referred to ECtHR jurisprudence. 75 Constitutional Law no 21-​IVKQ 21 December 2010  ‘On legal acts’ (‘Normativ hüquqi aktlar haqqında’) Art 4.1.1  accessed 4 May 2020. 76 Constitution of the Azerbaijan Republic, Art 130(5). 77 Seymur Seyranov, Azərbaycan Respublikası mülki hüququnda məhkəmə presedent hüququ (Precedent Law in the Civil Law Practice of Azerbaijan) (Azərbaycan Vəkili 2015) 6, 17–​22. 78 Rolf Knieper, ‘Der Schutz der Menschenrechte als Beitrag zur Konsolidierung des Rechtsstaats—​ Fünf Jahre Verfassungsgerichtsbarkeit in Aserbaidschan’ (2004) 50 Osteuropa-​Recht 24, 29.

THE IMPACT OF THE CJEU ON AZERBAIJAN  233 crucial for legal stability—​for example, during the economic crisis of 2014 caused by decreasing oil prices and devaluation of the national currency.

2.  Use of international and foreign jurisprudence The Supreme Court has stated in a plenary decision that courts should refer to ECtHR jurisprudence if no clear regulation can be found in national law.79 The President of Azerbaijan has also expressed support for learning and application of ECtHR jurisprudence by Azerbaijani Courts.80 Lower-​instance courts refer to ECtHR jurisprudence only in exceptional cases. However, some decisions have become quite popular, and are referred to more often. The Constitutional Court in its turn regularly cites ECtHR jurisprudence in its decisions.81 References to foreign jurisprudence as a persuasive source are widely used by the Constitutional Court. In particular, decisions by the German and Russian Constitutional Courts are usually referred to. All other courts are reluctant to refer to any other international or foreign jurisprudence, except for the ECtHR.

H.  Interaction with the CJEU Since Azerbaijan broadly uses European models in reforming its legal system, one would expect that CJEU jurisprudence could be effectively used as a comparative source for the law-​making process and court proceedings. However, the CJEU is not involved in any of the numerous cooperation projects in justice issues between the EU and Azerbaijan, even those funded by the EU itself.82 Azerbaijani lawyers are aware of the existence of the CJEU, but mostly regard CJEU jurisprudence as not relevant for Azerbaijan.

79 ‘Plenary Decision of the Supreme Court of the Republic of Azerbaijan on the Court’s Resolutions’, 24 November 2005, para 2.2  accessed 4 May 2020. 80 Decree of the President of the Republic of Azerbaijan no 352, 19 January 2006 on ‘Modernization of the Court System of the Republic of Azerbaijan and the adoption of the law of the Republic of Azerbaijan “On amendments and addenda to some legislative acts of the Republic of Azerbaijan” ’ (‘Azərbaycan Respublikasında məhkəmə sisteminin müasirləşdirilməsi və “Azərbaycan Respublikasının bəzi qanunvericilik aktlarına dəyişikliklər və əlavələr edilməsi haqqında” Azərbaycan Respublikası Qanununun tətbiq edilməsi barədə’) para 6  accessed 4 May 2020. 81 See n 73. 82 ‘Note for the Press: Improving the Efficiency and quality of Judicial Services in the Republic of Azerbaijan’ accessed 4 May 2020; ‘Note for the Press: Application of the European Convention on Human Rights in Azerbaijan’ accessed 4 May 2020.

234  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

1.  Citation of CJEU decisions by Azerbaijan courts Research on the available court decisions of Azerbaijan83 resulted in just three decisions by the Constitutional Court of Azerbaijan with reference to CJEU decisions. In an early decision from 2002, the Constitutional Court referred in a very general manner to CJEU jurisprudence.84 Special constitutional proceedings on interpretation of statutory regulation of the Constitution of the Azerbaijani Republic85 were initiated by the Office of the General Prosecutor. The Constitutional Court was called upon to clarify the relationship between the provisions on limitation periods for tax offences in the Criminal and Tax Codes of Azerbaijan. The limitation period for tax offences under the Tax Code86 was set at three years, whereas the Criminal Code set a seven-​year limitation period for serious tax crimes.87 The Constitutional Court decided that different limitation periods for criminal and tax proceedings are acceptable. The application of different limitation periods contributes to legal stability and predictability. The Court mentioned that the CJEU also follows the principle of legal predictability, though without reference to any particular case. In a decision from 2012, the Constitutional Court referred to Centros88 and based its argumentation on the abuse-​of-​rights concept mentioned in the Centros decision.89 This decision is much better drafted, and refers to a specific CJEU decision. The Court dealt with the rights of non-​owner residents to privatized residential property. The owner of privatized property was obliged by the law ‘On Privatization of residential property’90 to obtain permission for each act of disposal from all adult non-​owner residents of privatized property.91 This permission requirement covered all disposal acts by owners and was therefore broader than similar permission requirements prescribed in the Family and Civil Codes

83 About 860,000 decisions of Azerbaijani courts of all instances are published at accessed 4 May 2020. However, the database does not provide for a search option. The present author searched the database using a self-​developed search machine. 84 Plenary decision of the Constitutional Court of Azerbaijan of 08 April 2002 regarding the interpretation of Article 56.1 of the Tax Code AR and Articles 75 and 213 Criminal Code ARt accessed 4 May 2020. 85 Constitution of the Azerbaijan Republic, Art 130(4). 86 Tax Code of the Republic of Azerbaijan. Law no 905-​IG, 11 July 2000, Art 55(1) accessed 4 May 2020. 87 Criminal Code of the Republic of Azerbaijan. Law no 787-​IQ, 30 December 1999, Art 213(4), 75  accessed 4 May 2020. 88 Case C-​212/​97 Centros Ltd v Erhvervs—​og Selskabsstyrelsen [1999] ECR I-​01459. 89 Plenary decision of the Constitutional Court of Azerbaijan, 21 December 2012 ‘On the interpretation of Articles 1, 5 and 12 of the Law on Privatization of private living space’ accessed 4 May 2020. 90 Law no 463, 26 January 1993 (‘Azərbaycan Respublikasında mənzil fondunun özəlləşdirilməsi haqqında’) accessed 4 May 2020. 91 Law no 463, 26 January 1993 (‘Azərbaycan Respublikasında mənzil fondunun özəlləşdirilməsi haqqında’) Art 12(1) accessed 4 May 2020.

THE IMPACT OF THE CJEU ON AZERBAIJAN  235 for protection of spouses’ rights and protection of co-​owners.92 Interpretation of these provisions caused problems in court practice, and the Supreme Court of Azerbaijan asked the Constitutional Court to review the constitutionality of the permission requirement. The Court concluded that the provision targets protection of residential rights of non-​owners who used to live in privatized property before privatization. This goal is in line with the Constitution of Azerbaijan, which guarantees social rights of citizens. However, the Court qualified the right of non-​ owners to withdraw permission for all disposal acts by the owner, including testamentary dispositions, as too far-​reaching and unconstitutional. The property rights of an owner93 were disproportionally restricted by an extensive permission requirement. The legislator was requested to amend the respective provisions. At the same time, the Court held that permission that has been given by a non-​owner resident may not be abused by the owner. Even if non-​owner residents issued general permissions to dispose of residential property, the owner may not use this permission to purposely harm non-​owner residents. The Court referred to the Centros decision to establish the abuse of right concept. Notably, the CJEU rejected in this the argument by the Danish authorities that establishing a company in another EU Member State with the only goal of ‘circumvent[ing] the application of the national law governing formation of private limited companies’ amounts to an abuse of rights. Although the CJEU confirmed in Centros the general applicability of the abuse-​of-​rights concept and refers in its decision to its own jurisprudence,94 other decisions are more detailed and provide, among others, the abuse-​of-​rights test.95 Furthermore, the CJEU’s abuse-​of-​right concept did not perfectly fit as a reference for the issue discussed by the Constitutional Court. There are two types of abuse-​of-​rights concept.96 The first deals with disproportionate damage to another party by exercising the right. This is a mostly private law concept well known in most continental law countries, including Azerbaijan.97 The second type is broader and covers mostly public law issues, such as cases in which despite formal compliance with regulations, the ultimate result should be prohibited (eg tax evasion). Both concepts are related to each other, but still have significant differences. 92 Family Code of the Republic of Azerbaijan. Law no 781-​IQ, 28 December 1999, Art 32(1); Civil Code of the Azerbaijan Republic, Art 255(1). 93 Constitution of the Azerbaijan Republic, Art 13. 94 For instance, judgment of the Court in Case C-​110/​99, Agriculture: Export refunds: Goods immediately re-​imported into the Community—​Abuse of rights 14 December 2000, para 24  accessed 4 May 2020. 95 For instance, ibid para 46ff accessed 4 May 2020. 96 Takis Tridimas, ‘Abuse of Right in EU Law:  Some Reflections with Particular Reference to Financial Law’ (2009) Queen Mary School of Law Legal Studies Research paper no 27/​2009, 1. 97 Rechtsmissbrauch—​Germany (BGB, paras 226, 242); France ‘abus de droit’; zloupotreblenie pravom—​Russia (Civil Code of the RF, Art 10); hüquqdan sui-​istifadə—​Azerbaijan (Civil Code of Azerbaijan, Art 16).

236  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES In the case under discussion, the Constitutional Court treated the first type of abuse of rights—​the residential property owner uses his rights to dispose of the property in order to damage non-​owner residents. In contrast, the CJEU-​ developed concept of abuse of rights seeks to prevent circumvention of public legal regulations (tax evasion, banking rules) by formal reference to EU law. The argumentation by the Constitutional Court is correct and appropriate, although the reference to CJEU practice and to the Centros decision is not persuasive enough. It would have been more appropriate if the Constitutional Court had referred to the well-​established court practice of many jurisdictions dealing with the private law concepts of abuse of rights (Germany, France)98 but also to post-​socialist jurisdictions which have problems similar to Azerbaijan and have developed remarkable abuse-​of-​right concepts within the past twenty years (eg Russia).99 The last reference to CJEU jurisprudence appeared in the special opinion of Judge Rovshan Ismayilov in a Decision on the constitutionality of different supplementary pensions for some groups of public servants issued in 2014.100 The Law on Labour Pensions101 provided that only some groups of public servants (eg prosecutors, judges) received 50 per cent supplementary pensions if they reached pension age but were still working. Other groups were not eligible for supplementary pensions under the same circumstances. A judge of the Supreme Court of Azerbaijan—​Asad Mirzaliyev—​requested the Constitutional Court to decide in the framework of proceedings on abstract constitutionality control of statutory provisions,102 whether the differentiation provided in Law of Labour Pensions103 accorded to constitutional rights to equality,104 property,105 work106 and social security.107

98 For an overview of European codifications see Annekatrien Lenaerts, ‘The General Principle of the Prohibition of Abuse of Rights: A Critical Position on Its Role in a Codified European Contract Law’ (2010) 18(6) ERPL 1121–​54. 99 Vasiliy Vitryanskii, ‘Glava 4. Predely osushchestvleniya i sposoby zashchity grazhdanskikh prav’ (‘Chapter 4. The Limits of Exercising Civil Rights and How to Protect Them’) in Vasiliy Vitryanskii (ed), Reforma rossiiskogo grazhdanskogo zakonodatel’stva: promezhutochnye itogi (‘Reform of Russian Civil Legislation: Interim Results) (2nd edn, Statut 2018) 83ff. With special regard to abuse of housing rights, Svetlana Suslova, ‘Zloupotreblenie pravami v zhilishchnoi sfere’ (‘Abuse of the Rights in the Area of Housing Law’) (2013) 2 Grazhdanskoe pravo 31. 100 Plenary decision of the Constitutional Court of Azerbaijan, 14 November 2014 regarding the compatibility of Art 37.3.4 of the Law “On Labor Pensions” with the Constitution of the Republic of Azerbaijan accessed 4 May 2020. 101 Law no 54-​IIQ, 7 February 2006 ‘On Labor Pensions’ (‘Əmək pensiyaları haqqında’) Art 37(4) accessed 4 May  2020. 102 Constitution of the Azerbaijan Republic, Art 130(4). 103 Law on Labour Pensions, Art 37(4). 104 Constitution of the Azerbaijan Republic, Art 25. 105 ibid Art 28. 106 ibid Art 35. 107 ibid Art 38.

THE IMPACT OF THE CJEU ON AZERBAIJAN  237 The Constitutional Court decided that the differentiation is constitutional. However, the Court stated that the legislator should (could) amend the legislation in order to provide stability in the public service. Judge Ismayilov agreed that the provision in the Law on Labour Pensions108 was constitutional. However, he expressed his doubts on the legitimacy of the advice of the Constitutional Court to amend the legislation and criticized the poor reasoning for this advice. Judge Ismayilov stressed that the differentiation made by the legislator for supplementary payments for different groups of public servants was neither arbitrary nor random. He cited minutes of the Law on Labour Pensions reading in the Milli Majlis (Parliament of Azerbaijan), which in his opinion prove that the legislator aimed to differentiate the pension regime in order to strengthen stability in particular areas of government (such as justice). Judge Ismayilov stated his belief that such ‘advice’ by the Constitutional Court could undermine the reasoning of the decision, which clearly determines the constitutionality of Law on Labour Pensions.109 He emphasized that the development of governmental structures is not within the competence of the judiciary, but of legislative and executive powers. With regard to this statement, Judge Ismayilov referred to paragraph 57 of the Grand Chamber Decision in Société Arcelor Atlantique et Lorraine of 16 December 2008.110 The Grand Chamber there stated: The Court acknowledges that in the exercise of the powers conferred on it the Community legislature has a broad discretion where its action involves political, economic and social choices and where it is called on to undertake complex assessments and evaluations.

Although the reference by Judge Ismayilov is very brief, nevertheless it is precise and perfectly fits with his argument. Only three brief references to CJEU jurisprudence do not provide a sufficient basis for analysis. However, some conclusions are possible. The limited number of references to CJEU jurisprudence in the decisions of the Constitutional Court is more than surprising in light of three facts: • the Constitutional Court of Azerbaijan in general refers often to the jurisprudence of foreign constitutional courts; • the Constitutional Court of Azerbaijan decides on a very broad range of issues, which are far beyond the classic jurisdiction of constitutional courts; and

108 ibid Art 130(4). 109 ibid Art 130(4). 110 Case C-​127/​07 Société Arcelor Atlantique et Lorraine and others v Premier ministre, Ministre de l’Écologie et du Développement durable, Ministre de l’Économie, des Finances et de l’Industrie [2008] ECLI:EU:C:2008:728.

238  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES • Azerbaijan follows the European path in its legal reforms, and there have been many decisions where CJEU jurisprudence could very well have been used for argumentation. On the other hand, the references to the CJEU in three decisions from different years and citations of court decisions from different EU Member States indicate that there was no general reluctance to use CJEU jurisprudence. Furthermore, the quality of references has developed substantially. The evolving quality of references to ECtHR jurisprudence also proves that this is no coincidence.

2.  Practice of competition authority Competition authorities of numerous jurisdictions refer in their decisions to the highly developed CJEU jurisprudence in competition cases.111 This is not the case in Azerbaijan. The competition law of Azerbaijan is one of the most criticized areas of its legislation.112 The substantive legislation in this area originates from the early years of independence113 and needs reform. The State Service for Antimonopoly Policy and Consumer Protection deals with both consumer and competition issues. Notably, consumer issues are the focus of the State Service’s activities, but not competition issues.114 The State Service is a structural part of the Ministry of Economy, which raises questions as to its independence.115 At the same time, decisions by the State Service are not public and there are no reports on activities in the competition field.116 The situation should change soon. A new Draft Competition Code has been developed and submitted to the Presidential Office and Parliament.117 The EU supported the working group, and it is highly likely that the new Code will be based on the EU model. After the reform, the modernized competition authority of Azerbaijan will probably refer to CJEU jurisprudence on competition issues.

111 Cf. in this book Francesco Maniani, ‘The Impact of CJEU in Continental Europe’ at D.4. 112 Eldar Gojayev, ‘Brief Analysis of the Status of Antimonopoly Authorities of Azerbaijan and Several Foreign Jurisdictions’ (‘Azərbaycan Respublikası və bəzi xarici ölkələrin rəqabət orqanlarının təşkilati-​hüquqi statuslarının qısa təhlili’) (2016) 1(45) Beynəlxalq hüquq və inteqrasiya problemləri jurnalı 43, 45. 113 Law no 523-​IIQD, 4 March 1993 ‘On Anti-​Monopoly Activities’ (‘Antiinhisar fəaliyyət haqqında’) accessed 5 May  2020. 114 The website of the authority is accessed 5 May 2020. 115 Gojayev (n 111) 41, 43. 116 ibid 45. 117 ‘Support to the Republic of Azerbaijan on Competition Policy and Law’ (11 September 2018) Transtec accessed 5 May 2020.

THE IMPACT OF THE CJEU ON AZERBAIJAN  239

3.  Impact of CJEU jurisprudence on regulation It is rather difficult to identify the real impact of CJEU jurisprudence on law-​ making processes in Azerbaijan. The drafts, proceedings of consultations, and expert opinions are not publicly available. Several interviews with experts involved in the law-​making process show that usually consideration of CJEU jurisprudence—​as opposed to foreign legislation, international model laws, and ECtHR jurisprudence—​is in most cases not part of the tasks set by the authorities initiating law drafting. Therefore, experts refer to CJEU jurisprudence only in exceptional cases, even if CJEU case law was decisive for the development of European concepts. The only clear example of the impact of CJEU jurisprudence on Azerbaijani regulations is the freedom of a football player to change the team and league where he plays. The rule of Regulation of player status and transfer of the Association of Football Federations of Azerbaijan118 is directly linked to the Bosman decision of the CJEU.119

I.  Conclusions and Policy Recommendations The impact—​at least the visible impact—​of CJEU jurisprudence in Azerbaijan is quite low. This contradicts the political decision by Azerbaijan to take the European path in the development of its legal system and broadly use EU legal concepts as reference models for its legislation. There are multiple reasons for this incoherence. The CJEU has not been actively involved in the numerous cooperation projects between Azerbaijan and the EU, and CJEU jurisprudence was promoted neither in the framework of these projects nor in general. Furthermore, the first generation of Azerbaijani lawyers, which is fluent in English and has studied European (Union) law in law schools, have just started their careers. The older generation of lawyers are much less familiar with EU law and much less fluent in English, or any other EU language. However, the awaited ‘new generation effect’ could be seriously undermined by the focus in legal education in Azerbaijan on the institutional dimension of EU law and by the weak comparative law approach. These general obstacles are aggravated by overloaded judges and general reluctance by the Supreme Court to refer to foreign jurisprudence. The situation would substantially change if Azerbaijan were to sign a Cooperation Agreement with the EU;120 that is, if the Treaty contains rules on 118 Regulation of player status and transfer of the Association of Football Federations of Azerbaijan, Art 18(2) accessed 5 May  2020. 119 Case C-​415/​93 Union Royale Belge des Sociétés de Football Association ASBL v Jean-​Marc Bosman [1995] ECR I-​04921. 120 ‘EU Relations with Azerbaijan Date Back to 1991 and Are Based on the EU–​Azerbaijan Partnership and Cooperation Agreement’ (n 26).

240  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES law approximation similar to the provisions in the Association Agreements with Georgia, Moldova, and Ukraine,121 or even the less intensive Enhanced Partnership Agreement with the Eurasian Economic Union Member State Armenia.122 In this case, Azerbaijan would be obliged to carry out far-​reaching legal reforms in many areas, and particularly with regard to the jurisprudence of the CJEU.123 It remains to be seen whether Azerbaijan could negotiate specific clauses which would oblige the EU to provide all needed technical and academic assistance for approximation, as is partly provided for in some Association Agreements,124 but not in the EU–​ Armenia Comprehensive and Enhanced Partnership Agreement. However, an Enhanced Partnership Agreement does not have to contain legal approximation provisions. The EU has already signed an Enhanced Partnership and Cooperation Agreement with another Eurasian Economic Union Member State, namely Kazakhstan,125 which does not provide for any legal approximation. A legal approximation project can be successful only if a broad range of educational activities accompany reforms on different levels. Capacity-​building programmes for practising lawyers and public officers, as well as targeted programmes to support academia, are necessary. Otherwise, the impact of the reforms will be very limited, as presented in section D above regarding the example of unfair contract terms.126 Promotion of ECtHR jurisprudence by the Council of Europe in its Member States127 could be used as a model by the EU for promoting CJEU jurisprudence in associated countries.

121 Association Agreement of 30 August 2014 between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part OJ L261, 4–​743; Association Agreement of 30 August 2014 between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part OJ L260, 4–​738; Association Agreement of 29 May 2014 between the European Union and its Member States, of the one part, and Ukraine, of the other part OJ L161, 3–​2137. 122 Comprehensive and Enhanced Partnership Agreement of 26 January 2018 between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Armenia, of the other part OJ L23, 4–​466. 123 S. respecitve Chapters in this book. 124 See eg EU–​Ukraine Association Aggreement [2014] OJ L161 (EU–​Ukraine AA), Art 152, n 94. 125 Enhanced Partnership and Cooperation Agreement of 4 February 2016 between the European Union and its Member States, of the one part, and the Republic of Kazakhstan, of the other part OJ L29,  3–​150. 126 See n 54. 127 See eg Joint EU–​CE Project on Application of the European Convention on Human Rights and the case law of the European Court of Human Rights in Azerbaijan accessed 5 May 2020.

11

The Impact of the Court of Justice of the European Union on the Georgian Legal System Gaga Gabrichidze

A.  Introduction Intensification of relations between Georgia and the European Union (‘EU’) has resulted in a broad and many-​sided impact on the Georgian legal system. This chapter analyses the impact of the Court of Justice of the European Union (‘CJEU’) on the Georgian judiciary and the competition authority. It starts with a brief overview of the legal and judicial system of Georgia. In section C, the legal framework of EU-​Georgia relations is discussed. In order to identify the scope of the potential impact of EU law, including the case law of the CJEU, on Georgian legislation, the content of obligations to approximate legislation deriving from the Association Agreement and the scope of these obligations is examined. Sections D and E deal with perceptions of CJEU case law by the Georgian courts and competition authority illustrated by its citation in their decisions. An attempt is made to explain what factors may play a role with regard to the extent and frequency of mentioning CJEU case law in the decisions of above-​mentioned bodies. Section F provides a conclusion.

B.  The Legal and Judicial System of Georgia Georgia regained its independence in 1991 with the collapse of the Soviet Union. Soviet law had its roots in the civil law system1 but was greatly modified on the basis of socialist ideology. In its efforts to reform the legal system, which started immediately after becoming independent, Georgia remained true to its civil law tradition. In particular, adoption of private law emphasized the model role of the



1

John Quigley, ‘Socialist Law and the Civil Law Tradition’ (1989) 37(4) Am J Comp L 1433‒58.

Gaga Gabrichidze, The Impact of the Court of Justice of the European Union on the Georgian Legal System In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0011.

242  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES German civil code.2 Over the years, some legislative moves have been modelled on common law jurisdictions. Notably, the new Criminal Procedure Code, which entered into force in October 2010, introduced jury trials in criminal cases, albeit to a limited extent. However, the overall legal system largely applies the principles of continental European law. The institutional structure of Georgia’s judicial system is set out in the Constitution, adopted by the Parliament of Georgia on 24 August 1995 and based on the historical-​legal legacy of the 1921 Constitution of Georgia. The Constitutional Court of Georgia (‘Constitutional Court’) is the judicial body of constitutional review.3 Established in 1996, its primary function is to secure constitutional provisions and protect human rights and freedoms. The Constitutional Court consists of nine judges, each appointed for ten years. Three members of the Court are appointed by the President of Georgia, three are elected by more than three-​fifths of the full list of members of the Parliament, and three members are appointed by the Supreme Court.4 The Constitutional Court elects its chair from among its composition for a period of five years. Entitled to lodge a constitutional claim or a constitutional submission with the Constitutional Court are: natural and legal persons; the Public Defender; the President of Georgia; the Government of Georgia; not less than one-​fifth of the members of the Georgian Parliament; courts; the Supreme Council of the Autonomous Republic of Ajara; self-​government representative bodies called ‘Sakrebulos’; or the High Council of Justice. The Constitutional Court reviews the constitutionality of the Constitutional Agreement,5 laws, normative acts of the president and the government, normative acts of supreme state bodies of the Autonomous Republics of Abkhazia and Ajara, and disputes on competence between state bodies. It also adjudicates: the constitutionality of formation and activity of political unions of citizens; disputes on the constitutionality of regulations governing referenda and elections, as well as disputes on the constitutionality of elections (referenda); the constitutionality of international agreements; the constitutionality of normative acts in terms of fundamental human rights and freedoms enshrined on the basis of an individual’s lawsuit; and disputes on alleged violations of the Constitutional Law of Georgia on the Status of the Autonomous Republic of Ajara.6 Justice is administered by common courts. The common courts of Georgia are district (city) courts, courts of appeal, and the Supreme Court of Georgia,7 with the 2 Concerning the process of adoption of the civil code in Georgia, see: Lado Chanturia, ‘Codification of Private Law in Post-​Soviet States of the CIS and Georgia’ in Wen-​Yeu Wang (ed), Codification in International Perspective (Springer 2014) 93‒106. 3 Constitution of Georgia, Art 59.2. ‘Sakartvelos Parlamentis Utskebebi’, 31-​33, 24/​08/​1995. 4 ibid Art 60.2. 5 The Constitutional Agreement between Georgian State and the Georgian Apostolic Autocephalous Orthodox Church was signed in 2002 on the basis of Art 9 (now Art 8) of the Constitution of Georgia. 6 Law on the Constitutional Court of Georgia, Arts 33–​42. ‘Parlamentis Utskebani’, 001, 27/​02/​1996. 7 Law on Common Courts, Art 2.1. ‘Sakartvelos Sakanonmdeblo Matsne’, 41, 08/​12/​2009.

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  243 Supreme Court of Georgia being the court of highest review and final instance in the administration of justice.8 Judges of the Supreme Court of Georgia are elected for life (until they reach sixty-​five years of age) by a majority of the total number of the Members of Parliament, upon nomination by the High Council of Justice. The Chair of the Supreme Court is elected for a term of ten years by a majority of the total number of the Members of Parliament.9 Since 1 November 2005, the Supreme Court of Georgia has been a purely cassation instance. The court of appeal, in panels of three judges, examines petitions for appeal against decisions of district (city) courts. However, petitions for appeal on a certain category of cases may be examined by an individual judge. The court of appeal also exercises powers under the Law of Georgia on Arbitration.10 There are two courts of appeal in Georgia: one in Tbilisi and one in Kutaisi. The Kutaisi Court of Appeal is responsible for appeals against decisions of district (city) courts from west Georgia, and the Tbilisi Court of Appeal is responsible for appeals against decisions of district (city) courts from east Georgia. District (city) courts are first-​instance courts. They are created by a decision of the High Council of Justice of Georgia. A district court is established in a municipality (municipalities) and a city court in a self-​governing city.11 With the aim of providing for the speedy and efficient resolution of small claims cases, the institute of magistrate judges was established. Magistrate judges are judges of a district (city) court who practise in an administrative-​territorial unit within the jurisdictional area of the district (city) court.12 Judges of district (city) courts and of courts of appeal are appointed to office by the High Council of Justice of Georgia. To be appointed as a judge, a candidate must be a citizen of Georgia of at least thirty years of age, who has a higher legal education with at least a master’s or equivalent academic degree/​higher education diploma, at least five years of working experience in their specialty, command of the official language, has passed a judge’s qualifying exam, has completed a full training course at the High School of Justice, and is entered on the Justice Trainee Qualifications List. The law allows several exceptions with regard to the requirement for having passed a qualifying exam and completed a training course, mainly depending on professional background and position in the relevant court.13 Judges receive professional support from employees of administrative offices and assistants. A Georgian citizen who has higher legal education, knows the language of court proceedings, is a certified public servant as defined under the Law of Georgia on Public Service, and has completed up to one year of paid internship

8 9

10 11 12 13

ibid Art 14.1. ibid Art 61. ibid Art 24. ibid Art 27. ibid Art 28.3. ibid Art 34.1.

244  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES in a general court and a special training course at the High School of Justice may be appointed, according to the procedure established by the High Council of Justice of Georgia/​Plenum of the Supreme Court, as an employee of the administrative office of a court whose functions are directly related to the administration of proceedings in court.14 Assistants to judges receive citizens, accept their complaints and applications, prepare cases for hearing at a court session, search for appropriate legal literature and judicial practice materials, draft court decisions, and discharge other duties relating to the hearing at the assignment of a judge.15 The High Council of Justice is a body of the common courts system which is established to ensure the independence and efficiency of the courts. Its competences encompass appointing and dismissing judges, organizing judicial qualifying examinations, formulating proposals towards implementing judicial reform, and disciplinary proceedings. The High Council of Justice consists of fourteen members and the Chair of the Supreme Court. Eight members of the Council are elected by a self-​governing body of Georgian general court judges (the Conference of Judges which consists of judges of the Supreme Court, courts of appeal and district (city) courts), one member is appointed by the President of Georgia, and five members are elected by the Parliament of Georgia. The chair is elected by the High Council of Justice itself from among its judge members.16 The relationship between judicial bodies and the Ombudsman should also be mentioned here. The Public Defender (Ombudsman) of Georgia examines statements and appeals on violations of human rights and freedoms if the declarant is contesting, among others, infringements or violations of rights and freedoms during court proceedings.17 In certain cases, the Public Defender can act as a friend of the court (amicus curiae) in common courts and in the Constitutional Court. Besides, the Public Defender is entitled to apply to the Constitutional Court with a constitutional appeal related to the constitutionality of norms regulating referenda and elections and of elections or referenda held or to be held based on those norms, or when a normative act or some of its norms violates human rights and freedoms recognized by the Constitution of Georgia.18 Georgian courts cooperate with foreign courts in the framework of different projects supported by international donors. However, cooperation with the European Court of Human Rights (‘ECtHR’) should be emphasized at this point. Along with periodic visits to the latter, a number of training courses and seminars for Georgian judges have been conducted with the support of the Council of Europe, the EU, and other donors. These seminars are aimed at supporting judges in coherently applying the case law of the ECtHR in their decisions and at providing

14

ibid Art 57. ibid Art 58. 16 Constitution of Georgia, Art 64. 17 Law on the Public Defender of Georgia, Art 14. ‘Parlamentis Utskebani’, 13, 07/​06/​1996. 18 ibid Art 21. 15

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  245 a comprehensive overview of the human rights standards set by the European Convention on Human Rights (ECHR).19

C.  The Legal Framework of EU–​Georgia Relations With the EU–​Georgia Association Agreement20, whose text was initialled by the EU and Georgia on 29 November 2013 at the third Eastern Partnership Summit and signed on 27 June 2014, relations between Georgia and the EU acquired the current legal framework of relations. This agreement belongs to the new generation of Association Agreements concluded by the EU, providing not only improved market access for goods, but also wide-​ranging approximation commitments with regard to technical barriers to trade, trade facilitation, public procurement, intellectual property rights, sanitary and phytosanitary rules, competition, and energy policies.21 Provisional application of substantial parts of the Association Agreement started on 1 September 2014, fully entering into force on 1 July 2016. It is worth mentioning that the previous legal framework for relations, the EU–​ Georgia Partnership and Cooperation Agreement22 (PCA), which was signed in 1996 and entered into force in 1999, also contained an approximation clause according to which Georgia should ‘endeavour to ensure that its legislation will be gradually made compatible with that of the Community’.23 However, fully in line with the ‘soft’ nature of this commitment, the PCA did not set any specific objects of approximation or deadlines for completing it. In this regard, the EU–​ Georgia European Neighbourhood Policy (ENP) Action Plan (a political document outlining the strategic objectives of cooperation between the two parties with respect to implementing the European Neighbourhood Policy), adopted in 2006, brought some important developments by expanding the scope of fields to be covered by approximation and by introducing monitoring instruments. Nevertheless, it too could hardly be regarded as a source of ‘hard’ obligations with regard to legislative approximation.24

19 See below in section D.3 regarding the place of case law of the ECtHR in judicial training in Georgia. 20 [2014] OJ L261. 21 cf Adam Lazowski, ‘Enhanced Multilateralism and Enhanced Bilateralism: Integration without Membership in the European Union’ (2008) 45(2) CMLRev 1433‒58; Peter Van Elsuwege, Guillaume Van der Loo, and Roman Petrov, ‘The EU–​Ukraine Association Agreement:  Assessment of an Innovative Legal Instrument’ (2014) EUI Working Papers (Law) 9. 22 [1999] OJ L205. 23 ibid Art 43(2). 24 Concerning the approximation process before entry into force of the EU–​Georgia AA, see Gaga Gabrichidze, ‘Legislative Approximation and Application of EU Law in Georgia’ in Peter Van Elsuwege and Roman Petrov (eds), Legislative Approximation and Application of EU Law in the Eastern Neighbourhood of the European Union—​Towards a Common Regulatory Space? (Routledge 2014) 179‒91.

246  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES As for the EU–​Georgia Association Agreement, it not only underlines the commitment of the parties ‘to achieve economic integration in particular through a Deep and Comprehensive Free Trade Area (DCFTA), as an integral part of this Agreement including regulatory approximation’,25 but it also establishes various legislative approximation mechanisms. These mechanisms are placed in different parts of the Association Agreement, in particular, in Title IV (DCFTA), Title V (Economic cooperation),26 Title VI (Other cooperation policies),27 and Title VIII (Institutional, general and final provisions).28 The provision provided for in Article 417 (‘Gradual approximation’) can be regarded as an approximation clause of a general nature. According to this clause, Georgia ‘shall carry out gradual approximation of its legislation to EU law’, in accordance with the provisions of the Annexes and based on commitments specified in the agreement. However, this provision is without prejudice to any specific principles and obligations on approximation under Title IV (Trade and Trade-​Related Matters). Under the latter, those special approximation provisions are meant which can be found in sectoral chapters of the DCFTA part of the agreement. In particular, they are provided for in the chapters of the following sectors: technical barriers to trade, standardisation, metrology, accreditation and conformity assessment;29 sanitary and phytosanitary and animal welfare legislation;30 customs legislation;31 establishment, trade in services and electronic commerce;32 transport services,33 and public procurement.34 According to specific approximation provisions, Georgia will take the measures necessary in order to gradually achieve approximation with the Union’s relevant norms and follow the principles and practice laid down in the relevant Union acquis. Furthermore, Georgia undertakes to refrain from amending its horizontal and sectoral legislation in the priority areas for approximation, except for approximating such legislation progressively to the corresponding EU acquis and for maintaining such approximation. It should here be mentioned that the special approximation provisions refer to relevant annexes, where the scope of specific acquis and, partly, the timetable for approximation are provided for.

25 Preamble of the EU–​Georgia AA. 26 Taxation (Art 285); Statistics (Art 291). 27 Transport (Art 296); Energy cooperation (Art 300); Environment (Art 306); Climate action (Art 312); Company law, accounting, auditing and corporate governance (Art 319); Financial services (Art 323); Cooperation in the field of informational society (Art 327); Consumer policy (Art 347); Employment, social policy and equal opportunities (Art 354); Public health (Art 357); Cooperation in audio-​visual and media fields (Art 367). 28 Chapter 2 (‘General and final provisions’). 29 EU–​Georgia AA, Art 47. 30 ibid Art 55. 31 ibid Art 75. 32 ibid Arts 103, 113, and 122. 33 ibid Art 126. 34 ibid Art 146.

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  247 In addition to the above, a third category of approximation clauses can be found in Chapter 15 of Title IV (DCFTA) of the EU–​Georgia Association Agreement. These cover the following issues:  progress in approximation in trade-​related areas;35 repeal of inconsistent domestic law;36 assessment of approximation in trade-​related areas;37 developments relevant to approximation;38 exchange of information;39 and general provisions.40 Although these provisions are also of a general nature and do not refer to specific sectors, they differ from Article 417 in that the latter refers to the whole agreement, whereas the former can be categorized as general provisions on approximation under the DCFTA. In case of conflict with sector-​specific (special) approximation provisions, which also regulate the same area, it is those sector-​specific provisions which prevail.41 Taking into consideration the content of annexes to the EU–​Georgia Association Agreement which define the scope of the acquis, the current legal framework of relations between the EU and Georgia provides for approximation of Georgian laws with nearly 300 acts of EU law. Since its entry into force, in particular within the three-​year period 2014–​17, 9 new laws have been adopted, up to 70 laws have been amended, and up to 100 by-​laws have been issued.42

D.  CJEU Case Law in Decisions of Georgian Courts 1. Databases used The findings presented here of EU law acts and CJEU citation by Georgian judges are based on three digital databases:  the databases of the Constitutional Court and the Supreme Court, which are available on their websites,43 and the recently launched database of the Case Management System of Georgian Courts, which is currently in testing mode.44 While the databases of the Constitutional Court and the Supreme Court include all decisions of these courts, the database of the Case Management System of Georgian Courts (which in the future will include 35 ibid Art 271. 36 ibid Art 272. 37 ibid Art 273. 38 ibid Art 274. 39 ibid Art 275. 40 ibid Art 276. 41 ibid Arts 271‒76. Chapter 15, which contains these provisions, is a part of the DCFTA part of the Association Agreement (Title IV) and entitled ‘General provisions on approximation under Title IV’. 42 Reports of the Action Plans for 2015, 2016 and 2017 for Implementation of the Association Agreement and the Association Agenda:  accessed 5 May 2020. 43 Decisions of the Constitutional Court of Georgia:  accessed 5 May 2020. Decisions of the Supreme Court of Georgia:  accessed 5 May 2020. 44 The database of the Case Management System of Georgian Courts:  accessed 5 May 2020.

248  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES decisions of all courts at all instances), at the time of this study, covered only those adopted in 2019. Taking into account that info.court.ge, another database of decisions of district (city) courts and courts of appeal, at the time of the research did not provide full-​text-​search capabilities, hence making it impossible to search specific citations, the study of decisions of these instances is limited to those provided by the database of the Case Management System of Georgian Courts. As for the data on analysis of which the practice of the Competition Agency of Georgia with regard to citing CJEU case law is based, the complete collection of decisions was provided to the author by the Competition Agency. The findings are presented in Tables 11.1 and 11.2, together with results of research of court decisions. However, analysis of the practice of the Competition Agency is provided in a separate section.

2.  Results of the research The observed period is divided into two parts and starts in 1996. This year was taken as the starting point as the year when the PCA was signed. Although this agreement entered into force in 1999, it can be assumed that its conclusion would arouse some attention and interest toward the EU legal system. The second part covers the time between 2014, the year when the EU–​Georgia Association Agreement was signed and preliminarily entered into force, and to the present. It should be noted that for the reasons mentioned in section D.1 above, the present research does not include decisions of district (city) courts and courts of appeal adopted before 2019. Accordingly, Table 11.1 indicates that no data is available for these courts in the period 1996–​2014. As for the second part of the period observed, only decisions adopted by them in the period 1 January 2019–​1 July 2019 are considered. For the Constitutional and Supreme Courts, the table includes decisions for the entire period (1996–​July 2019). Table 11.2 below gives information about which fields of law were concerned in decisions where Georgian courts and the Competition Agency cited CJEU cases. As can be seen, nine out of a total twenty-​one decisions where the CJEU was cited concerned competition law. Not surprisingly, most of these decisions are by the Competition Agency (six), but some are by district (city) courts (two), and even one by the Supreme Court. Figure 11.1 below shows increased activity with regard to citing CJEU case law. It is particularly noticeable that the relatively high number of citations in the years 2017–​18 is especially attributable to intense activity by the Competition Agency. The higher number in the first half of 2019 is caused by two factors: first, an increase in citations on the part of the Supreme Court (ten out of twenty-​one citations were made in 2019)  and second, covering decisions of the district (city) courts and courts of appeal.

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  249 Table 11.1  Number of cases where CJEU decisions were cited in Georgia (1996–​2019) (number of citations in brackets) Period

1996–​2014

2014–​19

Total

Constitutional Court

0

2 (2)1

2 (2)

1 (3)2

6 (18)3

Supreme Court

7 (21)

na

6 (18)5

6 (18)

Competition Agency

–​

6 (23)6

6 (23)

Total

1 (3)

Other courts4

20 (61)

21 (64)

Source: Author’s own research from access to official and commercial databases. Note: decisions cited as of 1 July 2019. 1 Decision of the Constitutional Court of Georgia N 3/​1/​608 609 of 29 September 2015 (no specific case mentioned); Decision of the Constitutional Court of Georgia N 1/​8/​594 of 30 September 2016 (the following case is cited: C-​404/​07). 2 Decision of the Supreme Court of Georgia AS-​1210-​1139-​2012 of 2 May 2013 (the following cases are cited: C-​46/​02; C-​203/​02; C-​338/​02). 3 Decision of the Supreme Court of Georgia AS-​1158-​1104-​2014 of 6 May 2015 (the following case is cited: C-​212/​97); Decision of the Supreme Court of Georgia BS-​617-​604(K-​14) of 4 June 2015 (the following case is cited:  C-​529/​07); Decision of the Supreme Court of Georgia BS-​595-​592(K-​17) of 28 September 2017 (the following cases are cited: C-​74/​14; Joined cases C-​89/​85, C-​104/​85, C-​114/​85, C-​116/​ 85, C-​117/​85, and C-​125/​85–​C-​129/​85; C-​217/​05; С-​260/​07; T-​348/​08); Decision of the Supreme Court of Georgia AS-​1167-​1087-​2017 of 23 January 2018 (the following case is cited: C-​449/​13); Decision of the Supreme Court of Georgia AS-​237-​2019 of 17 May 2019 (the following cases are cited: C-​240/​98; C-​168/​ 05; C-​40/​08; C-​243/​08; C-​137/​08; C-​397/​11; C-​415/​11); Decision of the Supreme Court of Georgia AS-​ 586-​2019 of 28 June 2019 (the following cases are cited: C-​240/​98; C-​40/​08; C-​137/​08). 4 As noted, for district (city) courts and courts of appeal only the period 1 January 2019–​1 July 2019 is considered. 5 Decision of the Tbilisi City Court of 8 February 2019 regarding Case 2/​ 20534-​18 (the following case is cited: C-​177/​88—​accidentally referred to as C-​1777/​88); Decision of the Tbilisi City Court of 12 February 2019 regarding Case 2/​39296-​16 (the following cases are cited: C-​7/​73; C-​27/​76; C-​85/​ 76; C-​322/​81); Decision of the Tbilisi City Court of 12 February 2019 regarding Case 2/​39297-​16 (the following cases are cited: C-​27/​76; C-​85/​76); Decision of the Tbilisi Court of Appeal of 14 February 2019 regarding Case 2b/​3161-​18 (the following cases are cited: C 240/​98; C-​168/​05; C-​40/​08; C-​137-​08; C 243/​08; C-​472-​10; C-​397/​11; C-​415/​11); Decision of the Tbilisi City Court of 22 February 2019 regarding Case 2/​26369-​18 (the following case is cited: C-​177/​88—​accidentally referred to as C-​1777/​88); Decision of the Tbilisi Court of Appeal of 6 March 2019 regarding Case 2b/​5138-​17 (the following cases are cited: C-​137-​08; C 243/​08; C-​472-​10; C-​415/​11). 6 Order N 04/​91 of 21 April 2017 of the chairman of Competition Agency of Georgia (the following cases are cited: 311/​84; Joined cases 6 and 7/​73; T 201/​04); Order N 04/​167 of 23 June 2017 of the chairman of Competition Agency of Georgia (the following cases are cited: 48/​69; 40/​73; C-​557/​12); Order N 04/​186 of 19 July 2017 of the chairman of Competition Agency of Georgia (the following cases are cited: T-​11/​89; 15/​74; C-​73/​95; 48-​69; 170/​83); Order N 04/​273 of 6 October 2017 of the chairman of the Competition Agency of Georgia (the following case is cited: T-​57/​01); Order N 04/​117 of 10 May 2018 of the chairman of Competition Agency of Georgia (the following cases are cited: 161/​84; C-​89/​ 85; T-​62/​98; T-​78/​02); Order N 04/​166 of 6 July 2018 of the chairman of the Competition Agency of Georgia (the following cases are cited: 48769; 40/​73; T-​11/​89; 15/​74; C-​73/​95; 170/​83; C-​538/​13).

On closer inspection, it becomes apparent that instances where the Constitutional Court mentions the case law of the CJEU in its decisions are rare. In particular, the Constitutional Court cited the case law of the CJEU in two cases. In one case from 2015, the Constitutional Court refers to the case law of the CJEU in a general way,

250  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Table 11.2  Georgia: Citations of CJEU decisions according to fields of law (1996–​2019) Constitutional Court

Supreme Court

Other courts

Competition Agency

Fundamental rights

2

–​

2

–​

Competition law

–​

1

2

6

Corporate law

–​

1

–​

–​

Tax law

–​

1

–​

–​

Trademark law

–​

1

–​

–​

Contract law

–​

1

–​

–​

Consumer protection

–​

2

2

–​

19 20

18 20

17 20

16 20

15 20

14 20

20

19

96

–2

13

30 25 20 15 10 5 0

01 2

No of citations

Source: Author’s own research from access to official and commercial databases. Note: decisions cited as of 1 July 2019.

Year

Fig 11.1  Georgia: CJEU citations over the years 1996–​2019 Source: Author’s own research from access to official and commercial databases. Note: citations as of 1 July 2019.

not specifying concrete decisions.45 In particular, it mentions the CJEU among those international courts which recognize the principle of retroactivity of a lighter penalty. In the second case from 2016, while referring to Directive 2012/​29 of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime46 as an example of international practice concerning the standing of victims in criminal proceedings, the Constitutional Court cites a guidance document of the European Commission for implementation of the Directive and refers to CJEU case C-​404/​07 Katz v Sós—​as mentioned in the guidance 45 Decision of the Constitutional Court of Georgia N 3/​1/​608, 609 of 29 September 2015 (no specific case mentioned). 46 [2012] OJ L315/​57.

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  251 document—​for the purpose of interpreting Article 10 of Directive 2012/​29.47 In particular, the Constitutional Court points out that, according to the CJEU, a national court need not allow the victim to be heard as a witness in criminal proceedings instituted by a substitute private prosecution such as that in issue in the main proceedings. However, in the absence of that possibility, it must be possible for the victim to be allowed to give testimony which can be taken into account as evidence.48 In comparison to the Constitutional Court, the Supreme Court cites the case law of the CJEU more frequently. In particular, in a decision made in 2015, the Supreme Court cites the Centros case49 of the CJEU, pointing out that restrictions on freedom of establishment may be justified by overriding reasons.50 In another decision, from 2013, the Supreme Court not only mentions the case law of the CJEU, but also uses it for the purpose of substantive interpretation of facts. In particular, in one of its decisions on an appeal in cassation, the Civil Chamber of the Supreme Court of Georgia had to clarify the concept of an investment involved in the making of a database.51 The court fully adopted an interpretation of this definition, as contained in EU law. In its decision, the court named, even if as an example, the sources of such interpretation: EU directive 96/​952 and several decisions of the Court of Justice.53 Worthy of mention is a decision of the Supreme Court on the admissibility of a cassation appeal where the Supreme Court extensively relied upon the case law of the CJEU in the area of competition.54 The background of the case was as follows: in 2015, the Competition Agency revealed the presence of cartel agreements in the Georgian fuel market and fined the five largest oil companies up to a total of 55 000 000 GEL (circa 20 000 000 EUR). The decision has been appealed to the courts in separate proceedings. In this particular dispute between one of the oil companies concerned and the Competition Agency, the Tbilisi City Court decided in favour of the Competition Agency. However, the Court of Appeal overruled the decision of the first-​instance court, declared the decision of the Competition Agency null and void, and assigned it to issue a new act after reinvestigating and evaluating 47 DG Justice Guidance Document of 19 December 2013 related to transposition and implementation of Directive 2012/​29/​EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/​220/​JHA. Ref Ares(2013)3763804. 48 Decision of the Constitutional Court of Georgia N 1/​8/​594 of 30 September 2016. 49 CJEU Case C-​212/​97. 50 Decision of the Supreme Court of Georgia AS-​1158-​1104-​2014 of 6 May 2015. 51 Decision of the Supreme Court of Georgia AS-​1210-​1139-​2012 of 2 May 2013. 52 Directive 96/​9/​EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases OJ L077, 27 March 1996 P 0020–​0028. 53 The judgments of the CJEU mentioned in this decision are as follows: Cases C-​46/​02; C-​203/​02; C-​338/​02. 54 Decision of the Supreme Court of Georgia BS-​595-​592(K-​17) of 28 September 2017 (the judgments of the CJEU mentioned in this decision are as follows: Case C-​74/​14; Joined cases C-​89/​85, C-​ 104/​85, C-​114/​85, C-​116/​85, C-​117/​85, and C-​125/​85–​C-​129/​85; C-​217/​05; С-​260/​07; and T-​348/​08).

252  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES the circumstances. Therefore, as mentioned above, the Supreme Court had to decide on the issue of admissibility of a cassation appeal brought by the Competition Agency against a decision of the Court of Appeal. In its decision, the Supreme Court devotes particular attention to the arguments by the applicant that there were no legal grounds for the Court of Appeal to annul the decision of the Agency, since it was impossible for it to evaluate the facts and to adjudicate the disputed factual issues anew. In particular, the Supreme Court reacts to several arguments of the Competition Agency claiming a sufficient level of investigation on which its decision to impose a fine was based. First, the Court points out that parallel conduct cannot be regarded as sufficient proof of concerted action unless the latter constitutes the only plausible explanation for such conduct. Further, economic operators cannot be deprived of the right to adapt their own development strategies to the conduct of their competitors. It should here be noted that the judgment of the CJEU of 27 September 1988 in joined Cases C-​89/​85, C-​104/​85, C-​114/​85, C-​116/​85, C-​117/​85, and C-​125/​ 85–​C-​129/​85 A Ahlström Osakeyhtiö and others v Commission, is indicated as the source of this interpretation. However, taking into consideration the cited text, the Supreme Court presumably meant the judgment of the CJEU of 31 March 1993 in joined Cases C-​89/​85, C-​104/​85, C-​114/​85, C-​116/​85, C-​117/​85, and C-​125/​85–​C-​ 129/​85 A Ahlström Osakeyhtiö and others v Commission. Second, the Supreme Court refers to the case law of the CJEU, in particular to the judgment of 2 April 2009 in Case С-​260/​07 Pedro IV Servicios SL v Total España SA, according to which any restriction of the buyer’s ability to determine its sales price (maximum or recommended sale prices) is permitted, as long as it does not operate in practice as a fixed or minimum price. Third, while commenting on the issue of assessing the independence of an intermediary, the Supreme Court cites the judgment of the CJEU of 14 December 2006 in Case C-​217/​05 Confederación Española de Empresarios de Estaciones de Servicio v Compañía Española de Petróleos SA, and points out that the decisive factor for the purposes of determining whether an intermediary is an independent economic operator is to be found in the agreement concluded with the principal and, in particular, in the clauses of that agreement, implied or express, relating to assumption of the financial and commercial risks linked to sales of goods to third parties. Fourth, the Supreme Court shares the position of the Court of Appeal that the investigation conducted by the Competition Agency was incomplete and, to some extent, based on assumptions. The court points out that the burden of proving an infringement of competition legislation rests on the party or the authority alleging the infringement, and refers to the judgment of the CJEU of 21 January 2016 in Case C-​74/​14 ‘Eturas’ UAB and others v Lietuvos Respublikos konkurencijos taryba. Fifth, the Supreme Court cited one more decision of the CJEU, namely the judgment of 25 October 2011 in Case T-​348/​08 Aragonesas Industrias y Energia, SAU v Commission, by pointing out that the fragmentary and sporadic items of evidence

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  253 which may be available to the Competition Agency should be capable of being supplemented by inferences, and only in the absence of another plausible explanation may the existence of an anti-​competitive practice or agreement be inferred from a number of coincidences and indicia. Based on these considerations, among others, the Supreme Court of Georgia recognized the case as inadmissible, thus letting the Appellate Court decision come into force. From the case law of the Supreme Court, another example can be also mentioned, where the applicant supported its arguments, inter alia, with a decision of the CJEU and argued that in the process of registering a trademark the opposite party had acted in bad faith according to criteria set by the CJEU in Case C-​529/​ 07.55 However, the Supreme Court did not take a position on this argument. The two most recent decisions of the Supreme Court in which CJEU case law was cited dealt with some issues in the field of consumer protection. In these decisions, the court draws attention to several aspects of consumer rights and extensively refers to the relevant judgments of the CJEU.56 As mentioned in section D.1 above, the existing databases did not allow inclusion in the present research of decisions of the district (city) courts and of courts of appeal to 2019. However, as the following case demonstrates, citations of CJEU case law were made on that level of the judiciary before then, too. Namely, a decision of the Supreme Court57 mentions that the applicant contested the Court of Appeal’s reference to the case law of the CJEU58 without proving its relevance to the facts of the particular dispute. The applicant further argued that by doing so, the Court of Appeal only sought to strengthen its own position by using the authority of the CJEU. Unfortunately, here also, the Supreme Court did not take a position on this assertion. As for 2019, a relatively large number of decisions of district (city) courts (four decisions59) and of courts of appeal (two decisions60) can be found where CJEU case law was cited. It is remarkable that in all of these decisions as well as in the above-​mentioned decisions of the Supreme Court from 2019 the judges refer to

55 Decision of the Supreme Court of Georgia BS-​617-​604(K-​14) of 4 June 2015. 56 Decision of the Supreme Court of Georgia AS-​237-​2019 of 17 May 2019 (the judgments of the CJEU mentioned in this decision are as follows: Cases C-​240/​98; C-​168/​05; C-​40/​08; C-​243/​08; C-​137/​08; C-​ 397/​11; and C-​415/​11); Decision of the Supreme Court of Georgia AS-​586-​2019 of 28 June 2019 (the judgments of the CJEU mentioned in this decision are as follows: Cases C-​240/​98; C-​40/​08; and C-​137/​08). 57 Decision of the Supreme Court of Georgia AS-​1167-​1087-​2017 of 23 January 2018. 58 In particular, the Court of Appeal cited the case of the CJEU C-​449/​13. 59 Decision of the Tbilisi City Court of 8 February 2019 regarding Case 2/​20534-​18 (the following case is cited: Case C-​177/​88—​accidentally referred to as C-​1777/​88); Decision of the Tbilisi City Court of 12 February 2019 regarding Case 2/​39296-​16 (the following cases are cited: Cases 7/​73; C-​27/​76; C-​85/​76; C-​322/​81); Decision of the Tbilisi City Court of 12 February 2019 regarding case 2/​39297-​ 16 (the following cases are cited: Cases C-​27/​76; C-​85/​76); Decision of the Tbilisi City Court of 22 February 2019 regarding Case 2/​26369-​18 (the following case is cited: Case C-​177/​88—​accidentally referred to as C-​1777/​88). 60 Decision of the Tbilisi Court of Appeal of 14 February 2019 regarding Case 2b/​3161-​18 (the following cases are cited: Cases C 240/​98; C-​168/​05; C-​40/​08; C-​137-​08; C 243/​08; C-​472-​10; C-​397/​11;

254  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES CJEU case law, while taking into account approximation of the Georgian law in the relevant field to that of the EU.

3. Evaluating remarks These examples show that when Georgian courts mention CJEU judgments, their motivation has been either to strengthen their own position through referring to the authority of EU law and practice or to use CJEU case law as a source of interpretation. In particular, both mentioned decisions of the Constitutional Court belong to the first category. As for the Supreme Court and other courts, in only one decision out of nineteen did citing CJEU case law aim to reinforce the judges’ own position. In all other decisions, it was used for the purpose of determining the meanings of certain legal concepts. With progress in approximating Georgian law with that of the EU, it seems that Georgian courts will intensify the use of CJEU case law as a source of interpretation. In the above-​mentioned decision in section D.2 concerning cartel agreements in the Georgian fuel market, the Supreme Court points out that, according to the ‘Comprehensive Competition Policy Strategy’ adopted by the Government of Georgia in 2010, development of the area of competition is oriented towards EU and international standards. The Supreme Court takes this as a reason for extensive use of CJEU case law. In general, one reason for the low number of CJEU citations may be a lack of in-​ service training measures for judges in the foundations of EU law.61 For example, unlike EU law,62 the ECHR and case law of the ECtHR are integral parts of judicial training in Georgia. Training in the case law of the ECtHR is also conducted annually within the framework of in-​service training for judges and court staff.63 In contrast, in-​service training in EU law and CJEU case law is much less common. One such training session took place on 23–​25 October 2018, when the High School of Justice of Georgia organized a training session on EU law and Human Rights Standards C-​415/​11); Decision of the Tbilisi Court of Appeal of 6 March 2019 regarding Case 2b/​5138-​17 (the following cases are cited: Cases C-​137-​08; C 243/​08; C-​472-​10; C-​415/​11). 61 As for general legal education at university level, the first course in EU law was offered in the law faculty of Tbilsi State University in 1999. At present, almost all Georgian universities with law faculties offer such courses, at least at bachelor level. However, as a rule, they are elective and attract mostly students interested in public international law, rather than in private or criminal law. 62 Here should be noted that an exception is the case law of the CJEU in the field of human rights, which is part of the in-​service training programme for judges and other court staff. See eg the In-​Service Training Program for Judges and Other Court Staff for 2019, in Georgian:  accessed 5 May 2020. 63 The ECHR is the international treaty that is by far the most frequently mentioned by Georgian courts in their decisions. Regarding application of the ECHR see Konstantin Korkelia, ‘Application of the European Standards on Human Rights in the Georgian Practice’ (2010) 2 Eur Const Law Rev 21–​37 accessed 5 May 2020; Nana Mchedlidze, ‘Application of the Standards of the European Convention on Human Rights by the Common Courts of Georgia’ (2017)

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  255 from the perspective of CJEU case law. The training programme was developed and implemented within the framework of the Judicial Support Project, launched in 2016 under the EU/​Georgia Justice Programme (EU4Justice).64 Further, several training sessions were conducted with a specific focus on competition law and with the aim of enhancing the awareness of judges on competition issues and of sharing the EU experience, namely: ‘Training in competition law’ on 6–​7 October 2015;65 ‘Competition advocacy training for judges’ on 20 October 2016;66 ‘Training in competition law’ on 7 February 2018,67 and a ‘Seminar on competition issues’ on 23–​24 July 2018.68 There have been no training sessions on other subjects of EU law, such as labour law, immigration law, company law, and the like. Furthermore, the language barrier can also not be disregarded. In the field of human rights, a large number of textbooks, scientific papers, and guidelines in Georgian facilitate an improved level of knowledge in this particular area of law, including the case law of the ECtHR. Besides, on 20 December 2018, the Georgian interface of the HUDOC case law database was launched. This enables access to the case law database of the ECtHR in Georgian.69 In contrast, only one textbook on EU law70 and one publication of selected cases of the CJEU is in Georgian.71 Improving the language proficiency of judges is part of the Judicial Strategy for 2017–​21.72 In October 2018, an innovative English Language Training Programme Tbilisi accessed 5 May 2020. 64 The training was conducted by the present author together with a local colleague and Maria Berger, Judge of the CJEU. The event was attended by judges of the Supreme Court of Georgia, the Constitutional Court of Georgia, and Courts of Appeal. 65 The training was organized by the Higher Training Institute of Justice with the support of the German Society for International Cooperation and attended by judges of the Tbilisi City Court and the Court of Appeal. 66 The training was conducted for judges of the Common Courts in the framework of the project ‘Capacity Building and Advocacy Support for the Georgian Competition Agency’, which is supported by the European Bank for Reconstruction and Development, with funding from the Government of the United Kingdom. 67 The target group of the training session were assistants to judges of the Supreme Court. It was conducted with support from the Ministry of Foreign Affairs of the Kingdom of Norway and organized by Transparency International—​Georgia. 68 The seminar was organized in the framework of the EU project—​’Support to the Georgian Competition Agency’ and attended by judges from Tbilisi, Rustavi, and Batumi City courts, Courts of Appeal, and Supreme Courts and their assistants. 69 The Georgian interface was prepared and launched in the framework of the EU/​Council of Europe joint project ‘Strengthening the Application of the European Convention on Human Rights in Georgia’. About 880 texts are in Georgian in the HUDOC database already. Thus, the Georgian user interface joins the existing English, French, Russian, Turkish, and Spanish versions. 70 Gaga Gabrichidze, ‘Law of the European Union’ (2012) Tbilisi accessed 5 May 2020. 71 Nona Gelashvili and Eter Kamarauli, ‘The Case Law of the CJEU’ (2012) Tbilisi accessed 5 May  2020. 72 ‘Report on the Progress of the 2017–​2018 Action Plan of Judicial Strategy for 2017–​2021’, 60 accessed 5 May 2020.

256  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES for Judges was launched by the United States Agency for International Development (USAID)/​PROLoG. The programme was initiated at the request of the High Council of Justice, and aims to increase the English language ability of Georgia’s judges so that they can perform legal research in English. While this training programme focuses on judges at courts located in Tbilisi, the target group of another language training programme, to be conducted within a partnership between the High Council of Justice and the Peace Corps, will be judges at fourteen regional courts. Alongside these factors, the heavy workload of judges and resulting lack of time can also affect the level and intensity of citation of international practice. An assessment report on the number of judges in Georgia, prepared to contribute to reduce the courts’ backlog and to improve the efficient functioning of the judiciary, estimated that Georgia needs 410 judges (currently around 310), given current estimates of the court workload.73 Moreover, a statement issued by the judge members of the High Council of Justice on 26 December 2018 regarding the process of election of new judges of the Supreme Court reveals a critical situation with the workload in the Supreme Court. In particular, the authors of the statement point out that, at the time of issuing the statement, only ten judges were in the Supreme Court, whereas their number should be at least twenty-​eight according to the Constitution of Georgia. As a consequence of this situation, for example, in the Chamber of Criminal Cases one judge had more than 300 cases on his docket and therefore had to be assisted by judges of the Chamber of Civil Cases.74 Clearly, such a situation with the workload can also not be supportive of efforts by judges and their assistants to research international practice and use it in relevant decisions.

E.  CJEU Cases in Decisions of the Competition Agency of Georgia Besides the courts, it is also interesting to look at the practice of those authorities whose activities are carried out within a system based on regulations similar to those of the EU. One such authority is the Competition Agency of Georgia. The process of elaboration and adoption of the current system of competition rules is closely connected with progress in relations between the EU and Georgia. In particular, until 2012 the situation with Georgian legislation on competition was determined by an ultra-​liberal approach. The Georgian Law on Free Trade and Competition then in 73 The study on ‘Assessment of the Need for Judges in Georgia’ was supported by the USAID Promoting Rule of Law in Georgia Program—​PROLoG, the EU funded Judicial Support Project—​EU4Justice, and the Council of Europe project ‘Support to Judicial Reform in Georgia’:  accessed 5 May 2020. 74 See accessed 5 May 2020.

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  257 force, adopted in 2005, concerned only state aids and deregulation of monopolies and, therefore, negated any need for regulation of anti-​competitive agreements or abuse of a dominant market position, which clearly are the main areas of competition policy. The turning point came in 2012, when the Parliament of Georgia adopted a new law on Free Trade and Competition. Remarkably, this was done in the course of fulfilling requirements for conclusion of an association agreement (including DCFTA) between the EU and Georgia. Although the initial version of the 2012 law followed the patterns of EU competition law, there were still many significant discrepancies between them. However, after the change in economic and regulatory policy, which, for its part, was the result of the change of government in 2012, amendments to the 2012 law were adopted by the Parliament of Georgia on 21 March 2014. The revised law received a new title, the Law on Competition, filling gaps and removing all the main discrepancies between the relevant EU norms and Georgian regulations. This has been recognized by the EU–​Georgia Association Agreement in that it does not contain an obligation for Georgia to start approximating its competition rules to those of the EU. The EU–​Georgia Association Agreement solely underlines the obligation of the parties to: maintain in [their] respective territory comprehensive competition laws, which effectively address anti-​competitive agreements, concerted practices and anti-​ competitive unilateral conduct of enterprises with dominant market power and which provide effective control of concentrations to avoid significant impediment to effective competition and abuse of dominant position.75

Based on the Law on Competition, the Competition Agency of Georgia was established by the Government of Georgia on 14 April 2014. The Competition Agency is in charge of implementing competition policy in Georgia.76 Taking into consideration the background of Georgian competition legislation, it is not surprising that the practice of citing EU norms and CJEU case law by the Competition Agency is quite common. In one of its decisions, the Agency directly emphasizes the importance of EU law. In particular, in the process of defining what should be understood under ‘previous financial year’ for the purpose of calculating fines, the Agency pointed out that: it should be taken into consideration that the Georgian Law on Competition is based on the European experience concerning protection of competition and is harmonised with European legislation. Therefore, the Agency shall take into account the practice existing in the leading European countries.77

75

EU–​Georgia AA, Art 204.1. Law on Competition, Art 16. 77 Order N 04/​117 of 10 May 2018 of the chairman of the Competition Agency of Georgia. 76

258  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Starting from the middle of 2017, the Agency regularly integrates an overview of EU legislation and practice in its decisions.78 Due to the structure of competences of EU competition policy, decisions of the Agency logically contain many references to decisions of the European Commission.79 However, the Agency regularly cites CJEU case law as well. In almost all cases, the CJEU is regarded as having a very important interpretative value. In one case, it found a place not only in the review part, but also in the grounds of the decision.80 Table 11.3 below shows in its first column all the decisions issued by the Agency in each of the fields indicated, and in the second column the number of CJEU cases cited in this field. All in all, there were six decisions by the Agency that cited CJEU cases (as indicated in Table 11.1 above). As indicated by Table 11.3, the vast majority of citations are made while considering cases of alleged anti-​competitive agreements and abuse of a dominant position. In addition to these decisions, references to EU law can also be found in acts of the Competition Agency in the context of consideration of whether to decline complaints regarding anti-​competitive conduct submitted by applicants. This occurs in connection with remarks on the reasonable doubt standard as the legal basis for starting a formal investigation. In these acts, which are of dual nature, being partly procedural and partly substantive,81 the Agency points out that in the absence of evidence beyond reasonable doubt to support anti-​competitive conduct, it does not have sufficient reason to start an investigation. Whereas Georgian legislation on competition does not clarify the reasonable doubt standard, the Agency takes into consideration the practice of the European Commission and the interpretation of this notion in EU law. A detailed explanation of how EU competition law deals with the ‘reasonable doubt’ standard is given in every decision by the Competition Agency when declining to open proceedings.82 In almost all cases, the Agency refers to relevant documents adopted by the European Commission. 78 The first time this was done in Order N 04/​167 of 23 June 2017 of the chairman of the Competition Agency of Georgia. 79 See eg Order N 43 of 28 March 2016 of the chairman of the Competition Agency of Georgia; Order N 04/​91 of 21 April 2017 of the chairman of the Competition Agency of Georgia; Order N 04/​167 of 23 June 2017 of the chairman of the Competition Agency of Georgia; Order N 04/​273 of 7 October 2017 of the chairman of the Competition Agency of Georgia. 80 Order N 04/​186 of 19 July 2017 of the chairman of the Competition Agency of Georgia. In the grounds part of this decision, in addition to those cases of the CJEU mentioned in the review part, the Agency cited and discussed one more case from the practice of the CJEU. 81 The decision on declining is a decision on whether there is sufficient reason to start the investigation; whether there is a risk of having anti-​competitive conduct under the given circumstances; and whether it is worth starting an investigation under the principle of rational use of resources. 82 Order N 241 of 23 December 2016 of the chairman of the Competition Agency of Georgia; Order N 246 of 28 December 2016 of the chairman of the Competition Agency of Georgia; Order N 05 of 7 January 2017 of the chairman of the Competition Agency of Georgia; Order N 04/​31 of 6 February 2017 of the chairman of the Competition Agency of Georgia; Order N 04/​55 of 1 March 2017 of the chairman of the Competition Agency of Georgia; Order N 04/​76 of 23 March 2017of the chairman of the Competition Agency of Georgia; Order N 04/​288 of 20 October 2017 of the chairman of the Competition Agency of Georgia; Order N 04/​115 of 1 March 2018 of the chairman of the Competition

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  259 Table 11.3  Georgia: Citations of CJEU decisions by the Competition Agency according to area of regulation Area of regulation

Decisions

Number of citations

Abuse of a dominant market position1

6

3

Anti-​competitive agreements2

8

17

Distortion of competition by the state authorities3

9

3

Unfair actions4

3

0

Mergers5

12

0

State aid6

2

0

40

23

Total

Source: Author’s own research from access to official and commercial databases. Note: Decisions as of 1 July 2019. 1 Law on Competition, Art 6. 2 ibid Art 7. 3 ibid Art 10. 4 ibid Art 113. 5 ibid Art 11. 6 ibid Art 12.

However, in four cases the Agency expressly referred to specific decisions of the CJEU. Namely, while reviewing the competence of the Agency to decline to open proceedings, a parallel is drawn with the case law of the CJEU, according to which the European Commission cannot be compelled to carry out an investigation. Further, the Agency points out that according to settled case law of the CJEU, the European Commission must consider attentively all matters of fact and of law which complainants bring to its attention.83 In the second case,84 while deciding on whether there could be sufficient reason to start investigations, the Agency refers to case law of the CJEU, which takes a position on (i) the system for exchange between financial institutions of information on customer solvency;85 and (ii) agreements establishing an information exchange system.86 In the third87 and fourth88 cases, Agency of Georgia; Order N 04/​113 of 2 March 2018 of the chairman of the Competition Agency of Georgia; Order N 04/​112 of 4 April 2018 of the chairman of the Competition Agency of Georgia. 83 Order N 04/​13 of 2 March, 2018 of the chairman of the Competition Agency of Georgia. The Competition Agency referred to the following cases: Case T-​24/​90; C-​119/​97. 84 Order N 246 of 28 December 2016 of the chairman of the Competition Agency of Georgia. 85 Case C-​238/​05 Asnef-Equifax, Servicios de Información sobre Solvencia y Crédito, SL v Asociación de Usuarios de Servicios Bancario (Ausbanc) [2006] ECLI:EU:C:2006:734. 86 Case C-​7/95 P John Deere Ltd v Commission of the European Communities [1998] ECLI:EU:C:1998:256. 87 Order N 04/​41 of 18 February 2019 of the chairman of Competition Agency of Georgia. 88 Order N 04/​179 of 3 June 2019 of the chairman of the Competition Agency of Georgia.

260  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES while referring to relevant CJEU cases, the Agency points out that the European Commission is authorized to apply different degrees of priority to the cases submitted to it,89 and, again, that the Commission has the obligation attentively to consider all matters of fact and of law which complainants bring to its attention.90 A recently adopted Guideline, ‘Definition of Provisions of Article 6 of the Georgian Law on Competition, on the basis of EU executive and judicial practice’,91 underlines the importance that the Competition Agency attaches to EU law, and clearly demonstrates the huge impact of CJEU case law on regulatory policy in the field of competition. This document aims to provide information about the forms of abuse of a dominant market position to undertakings and to lawyers in order to increase awareness of competition law. This is in practice a compilation of the relevant cases of the European Commission and the CJEU on abuse of a dominant position and reviews the following forms of the latter: predatory pricing; rebates; price discrimination; margin squeeze; tying, and refusal to supply. In its introduction to the Guideline, the Agency unambiguously points out that taking into consideration the fact that Article 6 of the Georgian law on Competition is the equivalent of Article 102 TFEU, the practice of the Commission and the CJEU can freely be used in the context of Georgian legislation.92

F. Concluding Remarks Georgian courts mention CJEU case law with the aim of either strengthening their own arguments or using it as a source of interpretation. Examples from practice show that Georgian courts still cite the case law of the CJEU in a relatively small number of cases. The number of cases where CJEU decisions were cited by the Constitutional Court and the Supreme Court of Georgia is in total nine. For objective reasons, the research could only cover decisions of district (city) courts and courts of appeal which were adopted in the first half of 2019. However, six decisions of relevance could be found. The Competition Agency is also active in this regard with a total of six cases only since 2017. Because of the EU origin of Georgian competition law, the Agency relies heavily on the EU experience. Due to lack of local practice in competition law, this seems to apply to Georgian courts too. However, as a matter of course, not only for competition law is CJEU case law of relevance. As mentioned earlier in section C, the EU–​Georgia Association Agreement provides for approximation of Georgian laws with nearly 300 acts

89 Case T-​24/​90. 90 Case C-​119/​97. 91 Approved by Order of 11 December 2018 of the chairman of the Competition Agency of Georgia. 92 For the Guideline (in Georgian) see:  accessed 5 May 2020.

THE CJEU AND THE GEORGIAN LEGAL SYSTEM  261 of EU law. Presumably, implementation of the approximation clauses and other approximation-​related provisions in the EU–​Georgia Association Agreement will lead to increasing usage of CJEU case law by Georgian courts. With an increasing number of Georgian legal norms approximated to those of the EU, rulings of the CJEU will inevitably become an important source for the purpose of interpretation. Improved understanding among Georgian judges of the foundations of EU law and of CJEU case law is of the utmost importance in this regard. It is interesting that both of the relevant decisions by the Supreme Court from 2019 were adopted by the same judge, and both of the relevant decisions by the Tbilisi Court of Appeal were adopted under the chairmanship of the same judge. Besides, three out of four relevant decisions by the Tbilisi City Court were adopted by the same judge. Notably, in one of his decisions, this judge uses the holdings of another judge from the fourth relevant decision, including citation of CJEU case law. This statistical look on a personal level shows that, on the one hand, it is essential that judges be trained in EU law and CJEU case law. On the other hand, citing CJEU judgments by particular judges can have an impact on the decisions of their colleagues too.

12

The Impact of the Court of Justice of the European Union on the Israeli Legal System Arie Reich*

A.  Introduction This chapter presents the findings of the author on the impact of the Court of Justice of the European Union (CJEU) on the Israeli legal system. Most of the chapter deals with citations of CJEU cases by Israeli courts and tribunals and the impact that these cases had on the outcome of the case, and on Israeli law in general. It presents the statistics of these citations over the years, the types of tribunals that cite the CJEU, and the fields of law where these citations are mostly found, and it lists the CJEU cases that are more cited by Israeli tribunals. It also assesses the impact of the citations by a coding system that allows us to observe the relative influence that the citations had on the various tribunals. After having presented a statistical overview of the citation patterns, the chapter zooms into some specific cases where the CJEU was cited in order to put the citation into context and better understand its significance. The last part of the chapter presents some actual and potential impact of CJEU rulings on Israeli legislation and regulatory frameworks and discusses their significance. The chapter starts in section B with a general introduction to the Israeli legal system and judiciary and its cultural, political, and historical origins. It discusses the structure and function of the judiciary, who the judges are, where they were educated, which languages they command, and how they are appointed. This section also presents data on the use of foreign precedents and comparative law by Israeli judges, to serve as a background to their use of CJEU judgments. Readers that are familiar with the Israeli judiciary and legal system can skip this section and start with section C. Section C briefly describes the history and current status of EU–​Israel relations, including the extent to which there is a move towards harmonization between their legal systems. This section also discusses the history of EU legal studies * I have received excellent research assistance for this chapter from my student Yuval Shaki, and I thank him for that. Arie Reich, The Impact of the Court of Justice of the European Union on the Israeli Legal System In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0012.

266  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES in Israel and the prevalence of courses in EU law as part of the legal education that Israeli lawyers and judges receive. The objective of this introduction is to understand to what extent the actors that influence the development of Israeli case law have access to CJEU decisions. It will also help us understand the dynamics and relative importance of the citation patterns and certain influences that I have found and that are presented in the following sections. Section D presents the findings of the research on the citation of CJEU decisions in Israeli courts and tribunals and analyses the findings according to field of law, type of tribunal, relative impact of the decisions, and other parameters. Section E tells the story of a few of the Israeli cases that cited the CJEU and discusses their significance in their social and legal context. In section F, we turn to the actual and potential impact of the CJEU on Israeli regulation of certain fields, namely privacy and sports, and section G concludes with a summary of the findings and an evaluation of their significance.

B.  Israel’s Legal System and Judiciary The Israeli legal system is a so-​called ‘mixed system’, with both common law and civil law influences. The State of Israel was born in 1948, after having been under British rule based on a mandate from the League of Nations since 1917. During this time, English law was introduced, gradually replacing the Ottoman law that had been imposed during the 400 years of Turkish rule in Palestine. Family law was, and still is, governed by the legal systems of the country’s main religious communities. With the establishment of the state, the law as it was prior to independence remained binding. This was achieved by means of the first legislative act of the Provisional State Council, which enacted a reception statute as part of the Law and Administration Ordinance, published shortly after the Declaration of Independence. Since then, the Israeli Parliament (‘the Knesset’) has introduced new original legislation, partly influenced by European continental law, such as German civil law, and lately also US and Canadian law, and partly by Jewish Law and original Israeli doctrines. Since the 1990s, the Israeli Ministry of Justice, together with leading jurists, has been labouring on a complete recodification of all laws pertaining to civil matters. This new proposed civil codex was introduced in 2006. However, its adoption through legislation is expected to take many years, if not decades. Israel does not yet have a formal written constitution. However, the Knesset has enacted several Basic Laws, dealing with the division of powers between the various branches of government, as well as with human and citizens’ rights. The most important of these are the Basic Law: Human Dignity and Liberty (1992) and Basic Law: Freedom of Occupation (1994). The latter protects freedom of occupation, while the former affords constitutional protection to human life, body, and

THE IMPACT OF THE CJEU ON ISRAEL  267 dignity, as well as of personal liberty, privacy, and private property. It also guarantees the rights of Israeli nationals to enter the country from abroad, and the right of every person to leave. These Basic Laws enjoy supremacy over regular laws of the Knesset, and can therefore serve as a legal basis for constitutional review by the judiciary, which can lead to the quashing of laws found to be unconstitutional. The former President of Israel’s Supreme Court, Justice Aharon Barak, has ruled that the Basic Laws should be considered as the state’s constitution; indeed, that has become the approach of most of the judges of this court, albeit not all of them. Israel’s judiciary consists of secular and religious courts. The latter are only authorized in certain family matters, such as marriage and divorce, and include Rabbinical courts, Sharia courts, Druze courts, and courts for ten recognized Christian denominations. The secular courts comprise the Supreme Court, the district courts, magistrates’ courts, and labour courts. There are also various administrative tribunals, such as competition tribunals and intellectual property registrars. The Supreme Court, seated in Jerusalem, hears appeals from the district courts in civil, criminal, and administrative matters.1 It also serves as the High Court of Justice, where it hears constitutional and administrative petitions against other branches of government as the first and last instance.2 The Supreme Court has special jurisdiction to hear appeals in matters of Knesset elections, rulings of the Civil Service Commission, disciplinary rulings of the Israel Bar Association, administrative detentions, and prisoners’ petitions appealed from the district courts. The district courts are the middle-​level courts and are seated in six different districts (Nazareth, Haifa, Tel-​Aviv, Lod, Jerusalem, and Beer-​Sheba). In criminal matters, they have jurisdiction over cases where the accused faces a penalty of at least seven years’ imprisonment. In civil cases, they have jurisdiction over claims of more than 2.5 million shekels (approximately USD 715,000). Sitting as courts for administrative matters, they can hear petitions against government agencies, as well as claims for compensation in public procurement matters. They also hear appeals against judgments by magistrates’ courts, as well as cases involving companies and partnerships, arbitration, prisoners’ petitions, and appeals in tax matters. The Haifa District Court also serves as a court of admiralty, hearing all cases involving shipping. Most cases are heard by a single judge, though the court president can choose to appoint a three-​judge panel. Cases where the accused is charged with an offence punishable by at least ten years in prison and appeals from magistrates’ courts are heard by three-​judge panels. District court judges also serve as presidents of the antitrust tribunals, together with other tribunal members who are representatives of the public.3 As such, they



1

Basic Law: The Judiciary, Art 15(a), and 15(b) respectively. ibid Art 15(c) and 15(d). 3 See Restrictive Trade Practices Law, 5748–​1988 , Art 32. 2

268  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES hear appeals on decisions of the Director General (DG) of the Antitrust Authority,4 and they also have first-​instance authority to grant various orders, such as approvals of restrictive agreements,5 to divest merged companies,6 and to break up monopolies.7 The magistrates’ courts are the basic trial courts. They have jurisdiction in criminal matters where the offence bears a maximum punishment of less than seven years in prison. In civil matters, they have jurisdiction in matters of up to 2.5 million shekels, as well as over the use and possession of real property. Magistrates’ courts also serve as family courts, municipal courts, traffic courts, and small claims courts. There are currently thirty magistrates’ courts. Cases are heard by a single judge unless the court president decides to appoint a three-​judge panel. Israel also has special courts for labour disputes, which are divided into five regional labour courts and one National Labour Court in Jerusalem, which hears appeals from the regional courts. It also serves as a first-​instance court for national disputes between parties to a collective labour agreement, such as a union of workers and a major employers’ organization. It is also vested with exclusive jurisdiction over labour-​related complaints against the National Insurance Institute and claims under the National Health Insurance Law. Most cases are heard by a panel of three, made up of a judge, an employees’ representative, and an employers’ representative. The total number of judges in the secular courts is around 800,8 in addition to about 150 in the religious courts dealing with family law. That amounts to about one judge for every 8,163 citizens. In 2017, about 860,000 new cases were opened, with approximately the same number completed, in the secular courts.9 Thus, each judge completed on average 1,075 cases a year. About 10,000 new cases are filed each year with the Supreme Court,10 which has only 15 judges and one registrar, and where most of the cases are heard in chambers of three. Judges of all the secular courts are appointed by the Judicial Selection Committee.11 This is made up of nine members: the Minister of Justice, who serves as the chair, and another minister; two Knesset members elected by the Knesset (usually one from the coalition and one from the opposition); two members of the Israel Bar Association elected by the National Council of the Bar Association; 4 ibid Arts 22 and 28. The President of the Tribunal can also revoke an exemption given by the Director General, pursuant to Art 15. 5 ibid Arts 7‒10. 6 ibid Art 25. 7 ibid Art 31. 8 As of 31 December 2017, there were 731 judges in the Supreme Court, district courts, magistrates’ and labour courts, and 71 ‘registrars’ (a type of judge dealing with procedural matters): The Judicial Authority, ‘2017 Annual Report of the Directorate of Courts’ (in Hebrew) accessed 5 May 2020,  11–​12. 9 ibid 7. 10 ibid 9. 11 As provided by the Basic Law: The Judiciary, Art 4.

THE IMPACT OF THE CJEU ON ISRAEL  269 the President of the Supreme Court; and two other Supreme Court justices.12 The committee’s composition is intended to ensure the independence of the judges and to prevent outside political pressure. Hence, politicians do not have a majority in the committee, and most appointments, especially to the Supreme Court,13 require consent of the three judges of the Supreme Court. Note also that at least five out of the nine members are professional lawyers.14 To be appointed as a judge, a candidate must have a minimum of three, six, or ten years of legal experience, depending on the court to which the candidate is appointed. They must also have been members of the Israel Bar Association, or be entitled to be a member.15 This means that they are either graduates of Israeli law schools or graduates of foreign law schools who have passed the special examinations in Israeli law required to become a member of the bar. During the early years of the state, most judges, especially in the Supreme Court, had been educated in foreign countries, some common-​law countries such as Britain and the United States, and some on the European continent, such as Germany, Poland, and Turkey. However, over the past three decades, the vast majority of the judges have been graduates of Israeli law schools. Here and there, one can still find a few judges who went to law school abroad and a few who attended masters or doctoral programmes in law abroad, mainly in Britain or North America.16 Unlike the system in some continental countries, the judges have all been lawyers prior to their appointment to the bench, and there is no special track of legal education for judges. Judges are appointed based on their professional legal qualifications after having gone through a thorough and painstaking selection process. The independence of the judges is guaranteed throughout their term. Basic Law: The Judiciary provides that ‘[a]‌person in whom judicial power is vested shall, in judicial matters, be subject to no authority but that of the law.’17 Judges cannot be dismissed. Their appointment is permanent until the mandatory retirement age of seventy.18

12 ibid Art 4(b). 13 The appointment of Supreme Court judges requires the support of seven out of nine committee members. For other judges, a regular majority suffices. Theoretically, a Supreme Court judge could be appointed with the support of only one out of the three Supreme Court judges that are Committee members, if the candidate had the support of all of the other Committee members. However, the Supreme Court judges tend to vote as a block, so they have the ability to block an appointment that they dislike. 14 Namely, the three Supreme Court judges and the two members of the Bar Association. Often some of the Knesset Members or the ministers are also lawyers. 15 Courts Law [Consolidated Version], 5744-​1984, Arts 2, 3, and 4. 16 For instance, of the fifteen current Supreme Court judges, only two received their basic legal degree outside Israel: Justice Neil Hendel (Hofstra University, United States) and Justice Yosef Elron (University of Buckingham, United Kingdom). Some have advanced degrees in law from foreign institutions; Justice Yoram Danziger has a doctorate in law from the University of London and Judge Uri Shoham attended an advanced course for military judges of the US Army. 17 Basic Law: The Judiciary, Art 2. 18 ibid Art 7; The Courts Law [Consolidated Version], 5744-​1984, Art 13(a).

270  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Judges get professional help from both ‘legal assistants’ and ‘law clerks’. The latter (also known as ‘stagiaires’) are usually students or recent graduates of law schools who have not yet passed the bar exam. In order to become eligible to take the exam, they must work as law clerks to either judges or experienced lawyers for a year or two.19 To serve as a law clerk to Supreme Court judges is considered a highly prestigious post, and only the very best law graduates in the country will be accepted. They will help the judge prepare cases, prepare background materials, take notes during oral pleadings, and write legal opinions suggesting how the case should be resolved. Until about ten or fifteen years ago, law clerks were the only legal assistants that a judge could enjoy. Then a new post of legal assistants evolved, first in the Supreme Court, and then in other courts as well, whereby fully fledged lawyers, usually at the beginning of their career, and mostly women,20 could be employed to help judges handle their cases. Being more senior and experienced than law clerks, and with a longer term of employment with the judge (currently up to six years), they can usually be entrusted with more responsible work and provide better legal assistance to the judge. Thus, when discussing the legal education and sources of information about CJEU judgments that are available to Israeli judges, one needs to take into consideration not only the judges’ education, but also that of their law clerks and legal assistants. In addition to these two types of assistant, Supreme Court judges (and only they) have the option of employing volunteer legal clerks from abroad, to help them research comparative law. The programme of foreign clerkship has been in operation for over twenty years,21 and enables foreign accredited lawyers and excellent law students to apply for a clerkship with a Supreme Court Justice. If accepted, they will be assigned to a judge that has expressed interest in employing a foreign clerk and will work for this judge for a minimum period of three months.22 They will typically be asked to research comparative legal issues that arise in cases before their judge and to prepare draft memoranda regarding these issues that may be taken into consideration in decisions rendered by the Court. Over the years, the Court has employed clerks from the Americas, Europe, Asia, and Australia, including those whose first language is not English. One would assume that those from Europe have a more natural tendency to turn to the CJEU, although anyone with good research skills should be able to find relevant CJEU case law. 19 The length of the term has changed over the years. Until 1985, it was two years. Then it was shortened to a year-​and-​a-​half, and in 1994 it was shortened to one year. In 2017, the law was changed so that for most graduates, their mandatory clerkship is a year-​and-​a-​half. 20 According to publications in the media, in 2017, 660 legal assistants were employed in the Israeli judiciary, 90 per cent of them women. See Wikipedia, ‘Legal Assistants’ (in Hebrew):  accessed 5 May 2020. 21 Information obtained from Mrs Natalie Kimchi, in charge of the programme in the Supreme Court. 22 Information on the programme is available on the website of the Supreme Court:  accessed 5 May  2020.

THE IMPACT OF THE CJEU ON ISRAEL  271 The Israeli Supreme Court maintains structured judicial dialogues with several foreign judiciaries. These dialogues take place in periodical seminars (usually biennial), where those judges interested in participating meet with their counterparts in the supreme court of the other country. These seminars take place with judges from the United Kingdom, Canada, Germany, France (Conseil d’État), and India, hosted alternately in one of the two countries. Unfortunately, the CJEU is not part of this programme. However, there have been sporadic meetings between CJEU judges and Israeli Supreme Court judges, both in Jerusalem and in Luxembourg.23 Judges from all courts may also have sabbaticals of one month a year, which they can spend at universities abroad, in order to widen and update their knowledge of foreign legal systems.24 Israeli courts, and the Supreme Court in particular, often quote foreign cases, especially when faced with new legal questions where no clear and established rule can be found in Israeli statute or precedent. However, there is a significant preference for cases from common law countries, such as England, the United States, Canada, and Australia, given the common law roots of Israeli law and the prevailing familiarity with the English language. Research that covered the first forty-​ seven years of the State of Israel (1948‒94) found that citation of continental case law in the Supreme Court amounted to a mere 0.5 per cent of all case law cited (including domestic case law), whereas the percentage of common law case law cited amounted to 20.9 per cent.25 Follow-​up research that covered the years 1995‒2004 found a sharp increase in Israeli case law citation (91 per cent) and a decrease in foreign citations to around 9 per cent.26 Common law cases are still the dominant foreign sources (7.6 per cent), with continental case law continuing to drop (0.3 per cent), but with a certain increase in citation of international tribunals (such as the International Court of Justice) (0.96 per cent, as compared to 0.1 per cent in the first forty-​seven years). The increase in the percentage of domestic case citations reflects the growing independence of Israeli law from its historical common law sources.27 Hence, turning to foreign case law becomes an exercise in comparative 23 In 1999, the present author once took Judge Gordon Slynn, former Advocate General, then a judge of the European Court of Justice (ECJ), to the Israeli Supreme Court, to meet with the Chief Justice, at the time, Aharon Barak. 24 Administration of Courts, Directive 3-​09 Approval of Vacation for Study (Sabbatical), effective 25 February 2016. 25 Yoram Shachar, Ron Harris, and Miron Gross, ‘Citation Practices of the Supreme Court: Quantitative Analyses’ (1996) 27(119) Mishpatim 152 (in Hebrew). The research is based on a random collection of 7,000 Supreme Court decisions issued between 1948 and 1994, which represent 40 per cent of all decisions. 26 Miron Gross, ‘Formal Aspects and the Reliance Space of Judges in the Decision Making Process in the Supreme Court of Israel during the Last Decade—​Has Anything Changed?’ (2010) 13(291) Mishpat Ve’Asakim 314 (in Hebrew). This research was based on 100 per cent of the decisions issued during this time period. 27 While during the first forty-​seven years, the percentage of English cases was no less than 17.69 per cent, during the following decade the percentage was no more than 3.6 per cent. The percentage of US case law increased from 2.9 per cent to 4.13 per cent. On the growing influence of US law on Israeli law and legal education, see Pnina Lahav, ‘American Moment[s]: When, How and Why Did Israeli Law

272  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES law, rather than an attempt to understand the historical sources of legislation left over from the British Mandate. The low rate of continental law citation is explained by the author of the research by reference to the language barrier as well as the ‘distance in content’ between continental legal systems and Israeli law.28 Another research project that covered only constitutional cases of the Supreme Court found that between 1994 and 2010, about 28 per cent of all those cases cited some type of foreign law in their judgments.29 Based on her findings, the author concluded that ‘Israeli judges are open to foreign law, maintain extensive ties with supreme and legislative courts in many countries, and major judgments by the Israeli Supreme Court are published in English. Thus, the use of foreign law is part of ongoing dialogues between judges worldwide.’30 To summarize the approach of Israeli judges to comparative law, one could also quote the President of the Israeli Supreme Court, Aharon Barak, who once wrote: Comparative law—​whether international or national—​is most important . . . Its power lies in that it expands the interpretative horizon and field of vision. It has the power to instruct the interpreter as to the normative potential of the legal system. Its limitations stem from the peculiar nature of every legal system, its institutions and the ideology which characterizes it and the way it treats the individual and the society. Indeed, comparative law is like an experienced friend. It is good to listen to his good advice, but it should not replace one’s own discretion.31

C. Israel–​EU Relations and Familiarity with EU Law Israel’s relations with the EU go back as far as 1959, when diplomatic relations were first established.32 In 1964, a trade agreement was signed which was broadened Faculties Come to Resemble Elite US Law Schools?’ (2009) 10 TIL 653, and in particular at 687 on the growing influence of US law on the courts. 28 Gross (n 26) 314. See also Daphne Barak-​Erez, ‘Comparative Law as a Practice—​Institutional, Cultural and Practical Aspects’ (2008) 4 Din U’Dvarim 81 (in Hebrew). 29 Suzie Navot, ‘Israel:  Creating a Constitution—​the Use of Foreign Precedents by the Supreme Court (1994–​2010)’ in Tania Groppi and Marie-​Claire Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Judges (Hart 2013) 129, 142 (the present author calculated the general average for the whole period, based on the figures that appear there). 30 ibid 143. 31 HCJ 4128/​02 Adam, Teva V’Din—​Israeli Association for Environmental Protection v The Prime Minister (2004) PD 58(3)503, 515‒16. 32 For a description and discussion of the history of EU–​Israel relations, see Guy Harpaz and Gadi Heimann, ‘Sixty Years of EU–​Israeli Trade Relations:  The Expectations–​Delivery Gap’ (2016) 50(3) World Trade J 447; Avi Primor, ‘Israel and the EC’ in Mordechai Rabello (ed), European Legal Traditions and Israel (Harry and Michael Sacher Institute for Legislative Research and Comparative Law, the Hebrew University Jerusalem 1994) 459; Chava Shachor-​Landau, ‘Israel and the EC on the Eve of the Maastricht Agreement’ in Rabello ibid 445.

THE IMPACT OF THE CJEU ON ISRAEL  273 by an amendment in 1970. In 1975, Israel signed its first ever free trade agreement, and the partner to this agreement was none other than the European Communities. This agreement was later replaced by an extensive Association Agreement of 1995,33 which is the one that currently governs bilateral trade relations between the parties. Being part of the Mediterranean area, Israel is also a participant in the so-​called Barcelona Process,34 governing relations between the EU and its Mediterranean neighbours and between themselves. Another relevant regional policy is the European Neighbourhood Policy (ENP), which guides bilateral relations between the EU and all its neighbours.35 The EU is Israel’s biggest trading partner. Israel is also a founding World Trade Organization (WTO) member. The EU–​Israel Association Agreement includes an ‘approximation of laws’ provision (Art 55) that stipulates: The Parties shall use their best endeavours to approximate their respective legislations in order to facilitate the implementation of this Agreement.

A few important points should be made in relation to this provision. First, it is couched in ‘best endeavour’ terms, and hence does not constitute a strict obligation, but rather a ‘soft-​law’ commitment that can hardly be enforced.36 Second, it is not a general commitment to approximate legislation, but to approximate only to the extent that it will facilitate implementation of the Association Agreement.37 In other words, only in fields where differences in legislation create barriers to trade or to implementation of the agreement in other fields should parties use their best endeavours to approximate their legislation. Some other provisions in the EU–​Israel agreement also call for approximation of laws in specific sectors, such as technical standards,38 phytosanitary and veterinary standards,39 and financial services,40 but they are also mostly formulated in similar soft terms. And finally, these provisions 33 The Euro-​Mediterranean Agreement of 21 June 2000 establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part [2000] OJ L147, 0003–​171. 34 See Barcelona Declaration adopted at the Euro-​Mediterranean Conference, 27–​28 November 1995, Barcelona, 28 November 1995, final version. 35 For a description and critical discussion of the ENP as it applies to Israel, see Arie Reich, ‘The European Neighbourhood Policy and Israel: Achievements and Disappointments’ (2015) 49(4) J World Trade 619. 36 On the effectiveness of such ‘soft-​power’ instruments in relations between Israel and the EU, see Guy Harpaz, ‘Effectiveness of Europe’s Economic and “Soft” Power Instruments in Its Relations with the State of Israel’ (2004‒05) 7 Cambr Yearb Eur Leg Stud 162–​88. 37 Under my reading of the provision, the words ‘in order to facilitate the implementation of this Agreement’ not only inform us about the aim of the provision (in a way that is void of any legal significance) but also inform us about the scope of the parties’ commitment to use their best endeavours to approximate their legislation, namely, to the extent that it facilitates implementation of the Agreement. 38 EU–​Israel Association Agreement, Art 47. See also Art 42 of the Agreement in relation to standards for telecommunication and information infrastructure. 39 ibid Art 46. 40 ibid Art 48.

274  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES are all couched in neutral terms, refraining from saying who should approximate its laws with whom. In that, this clause is different from the approximation provisions found in several other EU association agreements, where the provision is much more specific in spelling out that it is the non-​EU state that is to approximate its laws to those of the EU.41 Of course, it is highly unlikely that the EU will approximate its laws so that they resemble those of Israel (or those of any other of its neighbours),42 but the fact that the provision leaves this open detracts even further from its legal significance. It is therefore not surprising that we do not find any mention of the provision in any of the Israeli judgments we have found citing the CJEU. Moreover, it is highly doubtful whether Israeli judges are aware of the provision or see themselves formally committed in any way under this agreement to approximate Israeli law to EU law. At most, this is a provision that may be the concern of Israeli regulators in areas of clear importance, as well as mutual benefit, in adopting EU-​convergent standards and rules. Indeed, since the conclusion of the EU–​Israel Association Agreement in 1995, Israel has moved in the direction of EU legislation in certain areas, including standards,43 competition law,44 environmental law,45 animal protection,46 and money laundering legislation,47 but this has all been done by the legislator. In other words, to the extent that we have judicial approximation of laws in Israel (a question that is explored below), it is probably mostly spontaneous, and not motivated by a sense of formal obligation on the part of the judges. Sometimes, it is also motivated by a quest for legitimacy. This was amply expressed by Supreme Court Justice Yitzhak Amit in a judgment dealing with the treatment of illegal immigrants:

41 See eg EU–​Algeria Association Agreement of 2005, Art 56 (also concluded as part of the EuroMed Barcelona Process), which provides that Algeria is to approximate its laws to those of the EU in all fields covered by the Agreement (Euro-​Mediterranean Agreement of 10 October 2005 establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part OJ L265, 1–​228). We find the same in the EU–​ Morocco Agreement of 2000, Art 52 (Euro-​Mediterranean Agreement of 18 March 2000 establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part OJ L070, P 0002–​204. However, in the EU Association agreements with Egypt (Art 48) and with Jordan (Art 69) we find approximation provisions which are identical to the one in the EU–​Israel Agreement. 42 In fact, the EU clearly expects its neighbouring countries to approximate their rules to those of the EU. See Damien Geradin and Nicolas Petit, ‘Competition Policy and the Euro-​Mediterranean Partnership’ (2003) 8(2) Eur Foreign Aff Rev 153, 167, in relation to competition law. 43 Eliyahu Hadar, The European Union and Its Activities in Product Certification, Standardization and Accreditation (Shaba 2002) (in Hebrew). 44 See Michal Gal, ‘Size Does Matter: The Effects of Market Size on Optimal Competition Policy’ (2001) 74 S Cal L Rev 1437, 1477. 45 See Avner De-​Shalit, ‘Europe, Israel and Environmental Policies: Lessons to Be Learnt’ in Avner De-​Shalit (ed), The Environment: Between Theory and Practice (OUP 2000). 46 Guy Harpaz and Rachel Frid, ‘Case Note—​The Israeli Supreme Court Judgment on Force-​Feeding of Geese’ (2004) 10(1) Int TLR N-​2-​3. 47 See Explanatory Notes of the 2000 money laundering legislation 2809 (1999), 420, 422. On EU–​Israel approximation of laws, see Guy Harpaz, ‘Approximation of Laws under the European Neighbourhood Policy: The Challenges that Lie Ahead’ (2014) 19 Eur Foreign Aff Rev 429.

THE IMPACT OF THE CJEU ON ISRAEL  275 My colleague Judge Vogelman has described the situation in different countries in Europe, which also are coping with immigration and refugee problems. We are not obliged to follow those countries, but as a state that wishes to belong to developed democratic-​liberal states, it is incumbent on us to identify our place in the line, to look to the right and to the left and to examine whether we are secluded at the end of the line, or are we in some place or another within the line.48

A final issue to be discussed in this chapter is the extent of familiarity of Israeli judges and lawyers with EU law. That, of course, much depends on whether EU law is taught in Israeli law faculties, and if so, to whom, and since when. According to my research, the first courses in EU law (or rather European Economic Community (EEC) law, as it was called at the time) were offered in 1979 and 1980 in the law faculties at the Hebrew University and Tel-​Aviv University, respectively.49 These elective courses were taught over one semester per academic year from 1980 to 2006 by Professor Chava Shachor-​Landau, who can be considered as the pioneer of the field in Israel. They dealt with the EEC and its institutions and devoted much of the study to the (then) European Court of Justice (ECJ).50 This occurred around the same time as general EEC studies started to take off in Israel.51 The Israeli-​American law professor Joseph Weiler also played an influential role in stimulating EU studies in Israel in general, and in the law faculties in particular. In 1992, the Israeli Association for the Study of European Integration (IASEI) was established at Bar Ilan University, bringing together scholars from all universities and all disciplines, including law professors, and providing a platform

48 HCJ 8425/​13 Eitan, Israeli Immigration Policy Centre v Government of Israel (2014), Opinion of Amit J, para 4. Based on the criteria set out in this quote, Judge Amit concludes that the characteristics of the residency centres created by the legislature in Israel are very far from the characteristics and purposes of residency centres elsewhere in Europe. Therefore, and since he found them to be unreasonable and disproportional in the hardships that they impose on illegal immigrants, he joined the majority opinion that struck down the relevant provisions of the law dealing with those centres. This judgment cites three CJEU holdings and much EU legislation, plus policy papers and literature on immigration and refugee law and policy in the EU. 49 Based on conversations and correspondence with Professor Chava Shachor-​Landau (on file with author) and other members of the Israeli Association for the Study of European Integration (IASEI). 50 In Jerusalem, the course distinguished between organizations for cooperation and organizations for integration and moved to lectures on the EEC right away. In Tel-​Aviv, the course was entitled ‘The European Community and its Institutions’, but soon changed its name to ‘The Court of Justice of the EEC’. The courses were taught continuously over a period of between twenty and twenty-​five years. At Bar Ilan University, a course in European Community law was taught first between 1989 and 1992 by Moshe Gelbard, and then by the present author from 1992 to date. 51 For a historical account, see Aharon Yair MacClanahan Shophet, ‘Israel and European Studies: A Historical Analysis’ (2012) 11 Eur Pol Sci 314. As noted there, in 1980, Richard Pomphret and Benjamin Toren published their book Israel and the European Common Market: An Appraisal of the 1975 Free Trade Agreement (1980), and in 1981, Ilan Greilsammer of the Political Science Department of Bar Ilan University published his book Israël et l’Europe: Une Histoire des Relations Entre la Communauté Européenne et l’État d’Israël. The author also organized a conference in 1984 at Bar Ilan University in Ramat Gan, the papers of which were edited into a volume by Prof Joseph Weiler and Greilsammer himself, with the title Europe and Israel: Troubled Neighbours, published in 1988.

276  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES for presentation of EU-​related research.52 Around the same time, professional courses (‘Continuing Legal Studies’) on EU law were also taught to Israeli judges and lawyers by Professor Landau and others. In 1994, the first book in Hebrew on EU law was published,53 as well as the first doctorate in EU law written in Israel;54 they were followed by a source book for a course in EU law that was published in 1995.55 These books, as well as several academic articles in Hebrew about EU law,56 helped to disseminate some awareness and information about EU law in the academic and professional legal sector in Israel. Since then, courses and seminars in EU law have been offered in practically all law schools in Israel, mostly as electives. A new generation of Israeli scholars specializing fully or partly in EU law can be found in the law schools.57 There are various academic fora where they can present their research and exchange ideas, first and foremost in the monthly seminars and annual conferences organized by IASEI, but also in other venues, both in Israel and abroad. Courses in EU law are also offered at the graduate level, both for lawyers and non-​lawyers.58

D.  Citation of CJEU Decisions in Israeli Case Law 1.  The databases used In this section, I present my findings of CJEU citation by Israeli judicial and administrative tribunals. The main source of our findings is the Nevo database59—​a digital database that includes over 4 million decisions.60 It is the most extensive database in 52 IASEI has been active continuously ever since, organizing annual conferences, symposia and workshops, and publishing newsletters, in relation to EU studies, EU law, and EU–​Israel relations. For more information, see MacClanahan Shophet (n 51) 316‒17; and the IASEI website:  accessed 6 May 2020. 53 Eran Lev, European Community Law:  Relevant Aspects for the Israeli Lawyer and Businessman (Bursi 1994) (in Hebrew). 54 Moshe Kaniel, The Exclusive Treaty Making Power of the European Community (Ramot Publishing House, Tel Aviv University 1994) (in Hebrew). The book is based on the author’s doctoral thesis, completed in 1990 under the supervision of Prof Chava Shachor-​Landau. It was also translated into English and published in 1996 by Kluwer. 55 Chava Shachor-​Landau (ed), Sources in European Law (Tel-​Aviv University, Faculty of Law 1995) (in Hebrew). 56 Several articles and pamphlets were published following the launch of the ‘Europe 1992’ programme (‘the Completion of the Internal Market’), which raised much interest in the Israeli business and legal community. 57 A  partial list of these scholars includes:  Iris Canor, Talia Einhorn, Rachel Frid de Vries, Guy Harpaz, Moshe Hirsch, Amichai Magen, Nellie Munin, Sharon Pardo, Arie Reich, and Lior Zemer. 58 One prominent example is the Master programme in Law offered at Bar Ilan University, which for several years included a mandatory introductory course on EU law offered both in the LLM programme for lawyers and in the MA programme for non-​lawyers. 59 This is a commercial database providing access in return for subscription fees to law firms and law schools. See the Nevo website:  accessed 6 May 2020. 60 On 20 December 2017, the database included 4,139,265 decisions. It is important to note that many of these decisions are purely technical-​procedural decisions, such as to set a date or postpone a date for a hearing, or to grant an extension to one of the parties for submitting their response. You do not expect to find citation of foreign sources in such a decision, but they are still a part of the total database.

THE IMPACT OF THE CJEU ON ISRAEL  277 Israel for judgments and judicial decisions from a broad (apparently full) spectrum of the tribunals and courts in Israel: the Supreme Court, district courts, trial courts, family courts, labour and employment courts, administrative courts, traffic courts, military courts, Rabbinical courts, standard contracts courts, antitrust courts, Real Estate Supervisor decisions, different types of decisions by planning and building committees, decisions of the Registrar of Patents and Trademarks, and so on. It covers decisions from 3 March 1944 until today. I have also conducted an additional search in the Antitrust Authority’s database, in order to recover all relevant decisions by the Antitrust Director General. For verification purposes, we also ran searches in another competing database—​Pador61—​in order to see if we would find any more decisions that had not yet been found through the Nevo search. We did not find any such decisions. Our findings are summarized in Table 12.1 below. Table 12.1  CJEU citation by Israeli tribunals (1977–​2019) Period

1977‒86

1987‒96

Supreme Court

1 (1)1

1 (3)2

–​

1 (1)5

District courts

1997‒2006

2007‒19

Total by court:

3 (3)3

23 (56)4

28 (63)

5 (6)6

12 (31)7

18 (38) 5 (8)

Administrative courts

–​

–​

–​

5 (8)8

Magistrates’ courts

–​

1 (1)9

–​

1 (1)10

2 (2)

Labour courts

1 (4)11

2 (6)12

4 (12)13

5 (9)14

12 (31)

Antitrust tribunals

–​

2 (7)15

8 (14)16

1 (1)17

11 (22)

Antitrust DG

–​

–​

3 (8)18

7 (40)19

10 (48)

13 (29)21

24 (49)

6 (7)22

6 (7)

Patent and Trademarks Registrar

–​

–​

11 (20)20

Small claims courts

–​

–​

–​

Total by years:

2 (5)

7 (18)

34 (63)

73 (182)

Absolute total: 116 (268)

Source: Author’s own research from access to official and commercial databases. 1 HCJ 698/80 (1). 2 HCJ 104/87 (3).

Continued 61 Pador is another commercial database of legal information. It belongs to the Israeli Bar Association’s economic corporation, and is available to subscribers:  accessed 6 May 2020.

278  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Table 12.1  Continued 3 HCJ 4855/02 (1); CA 9191/03 (1); HC 7052/03 (1). 4

HCJ 9​ 134/12 (13); HCJ 4​ 66/07 (4); HC 7​ 146/12 (4); HCJ 7629/​12 (9); CA ​490/13 (1); HCJ 4406/16 (1); HCJ ​8425/13 (2); LPrisA 328/15 (1); HCJ 5870/​14 (1); APA 3908/11 (1); CrimA ​2560/08 (1); CA 2706/11 (1); CA 8788/​04 (1); APA 7854/12 (1); CA 5885/13 (1); CrimA 5102/​03 (1); LCA 2616/​03(3); CA 11487/03 (3); CFH 5783/​14 (1); HCJ 8886/​15 (2); CA 1139/​17 (1); CA 2070/​19 (2); CA 3425/​17 (3). 5 CCJerDC 396/​87 (1). 6 Mot CivTADC 19810/​04 (1); OSJerDC 2212/03 (1); CrimJerDC 1231/01 (1); OSJERDC 3137/04 (1); CCTADC 881/​94 (2). 7 CATADC 15667-​ 11-​11 (7); OSTADC 189/​03 (5); LCATADC 29227-02-15 (1); ClassASCenDC 46010-​07-​11 (2); CCTADC 45192-​12-​14 (1); CCJerDC 9269-​07 (2); ClassASCenDC 41838-​09-​14 (4); CrimC 4368-​05-​16  (1). 8 APJer 53765-03-12 (2); OCAJerAP 13281-​06-​12 (1); OCAJerAP 20857-04-13 (1); OCAJerAP 2169603-16 (1); RDATAAP 21488-05-11 (3); OSTADC 37077-​01-​17 (3); ClassASTADC 18298-​11-​14 (1); ClassASCenDC 36098-​05-​16 (2); CATADC 57003-​11-​18 (2). 9 CrimC 4783/​93 (1). 10 CCTAMC 49918-​05-​12 (1). 11 NLCHr 3-​73/​46 (3). 12 NLCHr/​159/​3 55 (1); NLCHr/​1-​454 (5). 13 NLCHr/​129-​3 56 (7); NLCHr/​98/​3 (2); LabA 300113/98 (1); NLCHr 800007/​98. 14 LabA 209-10 (3); LabA 13359-12-13 (1); LabA 1842-05-14 (1); ACD 68-09 (2); EmpDJerDC 54860-01-12 (2). 15 AJerDC 1/​89 (4); MonJerDC 1/​93 (3). 16 AJerDC 1/​00 (1); AntJerTri 469/​98 (2); AntJerDC 2/​96 (4); AntJerDC 2/​96 (3); AntJerDCP 35/​00 (1); AntJerDC 99/​1 (1); AntJerDC 1393/​96 (1); AntJerDC 491/​98 (1). 17 AntJerTr43441-​04-​16  (1). 18 DDAA (Nitzvah, 1999) (6); DDAA (Alpha Card, 1999) (1); DDAA (Newspaper Market, 1999) (1). 19 DDAA (Ashdod Port, 2015)  (4); DDAA (Bezek, 2007)  (4); DDAA (Banks, 2009)  (3); DDAA (Electrical Power Company, 2017) (11); DDAA (Ela Recycling Corporation, 2013) (5); DDAA (Bezek, 2014) (11). 20 TMRDO 112645 (2); TMRDO 158300 (2); TMRD 164609 (3); TMRDO 146483 (2); TMRD 161426 (2); PTMR 162606 (1); PTMR 128323 (2); PTMR 165727 (1); TMRD 125438 (1); TMRD 95068 (1); TMRD 165762 (3). 21 PTMR 157792 (3); PTMR 182676 (5); PTMR 160693 (1); TMRD 188772 (3); TMRDO 202424 (3); PTMR 156076/​7 (2); PTMR 025142-3 (2); TMRDO 165333/4 (2); PTMR 240724 (1); PTMR 238633 (2); PTMR 215464 (2); PTMR 259500 (1). 22 SmCCJer 32765-​06-​16 (1); SmCCTA 45320-​02-​1 (1); SmCCHerz 68228-​03-​17 (2); SmCCTA 19414-​ 01-​17 (1); SmCCJer 574852; SmCCNET 8177-09-18 (1); SmCCNet 54901-​11-​18 (1).

2.  Presentation of the findings Our first column starts with the period 1977‒86 because we did not find any Israeli decision citing the (then) European Court of Justice earlier than 1980. The regular number in each square indicates the number of Israeli decisions issued by type of court or tribunal indicated in the relevant row which cites CJEU judgments. The number in parenthesis next to this number indicates the number of such judgments or different rulings that were cited in these decisions. For

THE IMPACT OF THE CJEU ON ISRAEL  279 instance, the number 23 (56) that appears in the column for 2007‒19 in the row for the Supreme Court means that in this period there were twenty-​three Supreme Court decisions that cited CJEU judgments, and a total of fifty-​six different CJEU cases or holdings were cited in these Supreme Court decisions. To be clear, one CJEU case that is cited several times in one Israeli decision will be counted more than once, but only if each time it was cited for a different holding in this case. In this regard, I do not distinguish between obiter dicta and ratio decidendi. For instance, in the Supreme Court case Gavish v Knesset, which dealt with the legality of the mandatory retirement age, the Court quoted many CJEU decisions, each of which was counted. One decision, C-​411/​05 Palacios de la Villa v Cortefiel Servicios SA, was quoted once in relation to the legitimate objectives of a mandatory retirement age, and another time in relation to the relevant consideration whether a worker will also receive financial means for self-​support after retirement. Therefore, each one of these quotations was counted. Next to each number in Table 12.1 is a footnote that lists the Israeli decisions that make up these numbers, with the number of CJEU cases or holdings that were counted in each one of them in parenthesis. On the very right is a column that indicates the number of all of the decisions of the court or tribunal in question that cited the CJEU over the years, and how many times altogether. The bottom row indicates the numbers of total citations by all tribunals, in each one of the ten-​year time periods. Table 12.1 shows that the tribunal that cites CJEU decisions most frequently is the Supreme Court. It has cited a total of sixty-​three different CJEU decisions or holdings, in twenty-​eight of its judgments. One can also see a sharp increase in its citation in the past decade, when the vast majority of its CJEU citations took place. However, compared to the frequency of use of foreign precedents in general by the Supreme Court, the number of cases citing the CJEU is not very high.62 Also in relation to the total number of relevant Supreme Court judgments issued in this period, the number is very low.63

62 As mentioned above, according to Navot’s figures, the frequency of use of foreign precedents in the Supreme Court’s constitutional cases (n 29) is about 28 per cent. Over a period of 17 years (1994‒2010) she found a total of 121 cases out of 431 where foreign sources were cited. About 64 per cent of those were from the United States, 13.4 per cent from Canada, 9.54 per cent from the United Kingdom, and 5.52 per cent from Germany (Navot (n 29) 145). If we were to take a comparable period of seventeen years (2001‒17), which is a period where we find a definite increase in CJEU citation, we have counted only nine constitutional cases where the CJEU has been cited by the Supreme Court. Assuming that we have the same amount of constitutional cases citing foreign precedents during this later period of seventeen years as we had in the period Navot examined, we would arrive at a frequency of about 7.4 per cent. In other words, the frequency of CJEU citation in constitutional law is less than the citation of UK cases (9.54 per cent) but more than the citation of German cases (5.54 per cent), though only about one-​ninth of the times US cases are cited. 63 According to figures provided at the author’s request by the Nevo database staff, between 1980 and 2017, a total of 13,154 judgments issued by the Supreme Court were of twenty pages and more. Thus, the twenty-​six judgments where the CJEU was cited during this period represent only 0.2 per cent of

280  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The Supreme Court is followed by the Patent and Trademarks Registrar, who has cited forty-​nine different CJEU decisions or holdings in twenty-​four of its decisions. The Director General of the Antitrust Authority (DG) is close behind with forty-​eight CJEU citations. However, these are found in only ten of his or her decisions. For the Registrar, the citations are divided more evenly over the past two decades, while with the DG, most of the citations are within the past twelve years. The Antitrust Tribunal has cited twenty-​two different CJEU decisions or holdings in eleven of its decisions. The number of CJEU citations in decisions by the Antitrust Tribunal and DG and by the Trademarks Registrar is especially significant considering the low volume of decisions by these tribunals. Hence, the prevalence of CJEU citations by these tribunals is higher than in any other Israeli tribunal.64,65 The labour courts and district courts have also cited the CJEU occasionally, while the magistrates very seldom cite the CJEU. Interestingly, the small claims court has cited the CJEU much more than the magistrates’ court, perhaps due to the fact that it deals much with consumer law, where there are some helpful CJEU decisions.66 The administrative courts have a relatively low number of citations (eight holdings in five decisions), all of them in the past twelve years, but one needs to remember that these courts were only established in the year 2000, so most of their activity has been during this period. Figure 12.1 below shows the pattern of CJEU citations by all tribunals in Israel over the years, since the first in 1980 until the end of 2019 (based on the number of decisions or holdings cited in Israeli decisions for each year). It shows a clear

all ‘relevant’ judgments. I requested the number of judgments longer than twenty pages in order to eliminate short and technical decisions and to include only judgments grappling with significant legal questions, where one could expect that the court would turn to comparative law. Another reason for the choice of this number was that all but one of the Supreme Court judgments citing the CJEU were longer than twenty pages. In fact, the average length of those twenty-​six judgments was eighty-​three pages (!), which shows that the Supreme Court turns to the CJEU mostly in so-​called ‘mega-​cases’, where significant legal questions need to be resolved. 64 The number of judgments longer than twenty pages issued by the Antitrust Tribunal since 1980 is only ninety-​seven. Thus, the percentage of its decisions where it cites the CJEU is 11.34 per cent. The number of relevant decisions by the Antitrust DG is 157, of which 9 have cited the CJEU, equivalent to 5.7 per cent. The number of relevant decisions by the Patent and Trademark Registrar was 1,115, which sets the CJEU citation percentage at 2 per cent of these decisions. However, this refers to decisions longer than five pages, because the registrars’ decisions tend to be shorter than those of the other tribunals (an average of about fifteen pages, and one can find decisions citing the CJEU that are only five or six pages long). One should also note that this number includes not just trademarks, but also patent cases, since it was not possible to get separate figures for trademarks only. Clearly, the percentage for trademark cases would be much higher. 65 The number of relevant district court decisions since 1980 (ie 20 pages and longer) was 37,649; decisions of administrative courts was 5,557; and decisions of labour courts was 23,977. 66 A CJEU judgment that was frequently cited by these courts was Case C-​257/​14 Corina van der Lans v Koninklijke Luchtvaart Maatschappij NV of 17 September 2015, which dealt with the right of passengers under the Montreal Convention (and the implementing EU regulation) to be compensated for cancellations of flights.

THE IMPACT OF THE CJEU ON ISRAEL  281 35

No of citations

30 25 20 15 10 5

19 80 19 82 19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98 20 00 20 02 20 04 20 06 20 08 20 10 20 12 20 14 20 16 20 18

0 Year

Fig 12.1  Israel: CJEU citation over the years 1980–​2019 Source: Author’s own research from access to official and commercial databases.

increase in such citations over the years, with the highest numbers found in the past decade. This increase is probably the result of two developments. One is the rise of awareness in Israel in general, and in the Israeli judiciary in particular, as to the importance of the EU and its Court of Justice. This can be explained by the increased academic and teaching activities in EU law in the 1990s, and the growing numbers of lawyers and judges who have been educated about the EU. The other development that no doubt has had an impact is the increase in the number of judgments issued by the CJEU and the fields of law that they cover. With the increase in the number of EU Member States and the growth of EU law, the number of judgments has grown significantly over the years.67 Additionally, the fields of law that the Court needs to address have grown immensely. If, in the early days, most cases were about free movement of goods and agriculture (issues that are of less relevance to the types of case that reach Israeli courts), in later years we see cases in almost all areas of the law, and in particular fundamental rights, consumer protection, competition law, intellectual property law, environment, and taxation,68 all of which are more relevant to Israeli courts than the judgments of the early years that dealt with free movement cases and the relationship between EEC law and domestic national law. 67 For instance, in 1967, the ECJ issued 24 judgments and opinions, in 1977 it issued 100 judgments and opinions, in 1997 the number rose to 242, in 2007 to 379, while in 2015 it reached 399 (in other words, an increase of almost 400 per cent over less than 40 years). During these years (since 1989) we also have the Court of First Instance (now called the ‘General Court’), which in 2015, for instance, issued 570 final judgments, reflecting a constantly growing docket. (See CJEU, ‘Annual Report 2015 Judicial Activity’, Luxembourg 2016, 93‒94 and 172:  accessed 6 May 2020.) 68 ibid 77.

282  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

3.  The fields of law where the CJEU was cited and by which tribunals Table 12.2 below shows the fields of law where the various Israeli courts and tribunals cited CJEU cases. Where these cases were cited in relation to only one field of law (for instance, competition law), the Israeli judgment that cited it will be counted once under this field of law, regardless of how many CJEU cases it cited in this field. If, however, the judgment cited CJEU cases in relation to more than one field of law (for instance, fundamental rights and immigration law), it will be counted for each one of those fields. The field of law with the highest number of cases that cite the CJEU is intellectual property (forty-​four). Not surprisingly, most of these cases are by the Patent and Trademark Registrar (twenty-​four), but we can also find some by the Supreme Court (six), the district courts (ten), and the administrative courts (four). Most of these cases (namely, twenty-​three by the Registrar, five of the Supreme Court, five of the district courts, and one of the administrative court) dealt with trademarks, with the remaining ten dealing with patent cases. The second most frequent field of law is competition law, with a total of thirty-​one cases, most of them by the Antitrust Tribunal (eleven) and the Antitrust DG (ten). The field of fundamental rights is the third most frequent field of law where the CJEU is cited (fifteen). Most of these citations (ten) are by the Supreme Court, which also functions as the High Court of Justice ruling on constitutional and administrative matters. The field of immigration and refugee law is also a frequent issue in the Supreme Court docket, especially over the past decade, when Israel has had to cope with a large influx of asylum seekers and other migrants from Africa. Therefore, most of the citations in this field (seven out of nine) are by the Supreme Court. Another tribunal that cites the CJEU quite frequently is the labour court (eleven) (mainly the National Labour Court,69 which is the appellate court that hears appeals from the regional labour courts). All of its judgments that cite CJEU cases are, not surprisingly, in the field of labour law, except for one.70 National Labour Court judgments can be challenged in the Supreme Court (in its capacity as the High Court of Justice), and that is why we have two (important) Supreme Court cases citing the CJEU in matters of labour and social rights.71 Israeli labour law is 69 Out of the eleven cases of the labour courts dealing with labour and social rights, ten were issued by the National Labour Court, and only one by one of the regional labour courts. There was also an eleventh case of the National Labour Court that cited the CJEU in matters of privacy law. 70 One of the cases, Labour Appeal 13359-​12-​13, dealt with questions of privacy. This was in connection with a lawsuit filed by an employee against the company that employed her alleging sexual harassment. Confidentiality was imposed on the names of the parties. A journalist and her newspaper filed a request to the National Labour Court for permission to publish the name of the employer. 71 One is the Nevo judgment of 1990 (discussed further below in section E.2), and the other is HCJ 9134/​12 Gavish v The Knesset of 2016, dealing with whether a mandatory retirement age is constitutional.

10

2

7

6

2

13

Fundamental rights

Labour and social rights

Immigration law

IP

Competition law

Other 7

7

10

1

–​

–​

–​

–​

4

1

–​

1

1

1

–​

–​

–​

–​

1

–​

–​

–​

11

4

District Administrative Magistrates’ Labour courts courts courts courts

Source: Author’s own research from access to official and commercial databases.

Supr’ Court

Branch of law

Table 12.2  In which fields of law do the tribunals cite?

1

11

–​

–​

–​

–​

–​

10

–​

–​

–​

–​

Anti-​trust Anti-​trust tribunals DG

–​

–​

24

–​

–​

–​

6

–​

–​

–​

–​

–​

Patent Trade Small Claims Marks Register Court

THE IMPACT OF THE CJEU ON ISRAEL  283

284  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Fundamental rights 11% Fundamental rights Other Immigration 7% Intellectual property 29%

Competition Competition law 22%

Labour rights IP Immigration Other

Labour rights 9%

Fig 12.2  Israel: Citations in which fields of law—​by all tribunals Source: Author’s own research from access to official and commercial databases.

much closer to European labour law than to US labour law. That is reflected also in the citation patterns of the CJEU, which along with the citation of other European courts, such as the European Court of Human Rights (ECtHR) and national labour courts in Europe, is more dominant than citations of US labour cases.72 Finally, the category ‘Other’ (twenty-​nine cases) includes: criminal law (five), data and privacy protection (five), private international law (four), transport law (four), tax and customs law (three), administrative law (two), contract and tort law (two), financial services (one), insolvency (one), corporate law (one), and procedural matters (one). Most of these judgments were given by the Supreme Court (thirteen), followed by the district courts (seven). Figure 12.2 below summarizes CJEU citations in all of Israel’s courts and tribunals and divides them up according to fields of law.

4.  The most-​cited CJEU cases Which CJEU cases are most commonly cited by Israeli tribunals? Table 12.3 below shows all of the CJEU cases that have been cited more than twice. As we can see, it is the competition and trademarks cases that dominate Table 12.3. On the top is the 1979 case of Hoffman-​La Roche dealing with the definition of the relevant market and abuse of a dominant position. It has been cited in no less than eleven decisions, mostly by the Antitrust DG and Tribunal, but also

72 See eg Chava Shachor-​Landau, ‘Equality between Male and Female Workers in the European Union’ (2006) 11 Lab Soc Law 357, 360 (in Hebrew) (textbook).

THE IMPACT OF THE CJEU ON ISRAEL  285 Table 12.3  The most-cited CJEU cases in Israel Name of decision Year issued Field of law

Times cited

Which tribunals

Hoffman-​La Roche v Commission

1979

Competition law

11

Supreme Court, Antitrust Tribunal, Antitrust DG

Michelin v Commission

1983

Competition law

6

Antitrust Tribunal, Antitrust DG

Case C-​363/​ 99 Koninklijke KPN Nederland NV v Bene1ux-​ Merkenbureau

2004

Trademarks

6

Trademarks Registrar

Case C-​27/​76 United Brands Co BV v Commission

1978

Competition law

6

Supreme Court, District Court, Antitrust DG, small claims court

Case C-​65/​00 2004 Campina Melkunie BV v BENELUX Merkenbureau

Trademarks

5

Trademarks Registrar

Case C-​131/​12 Google v Agencia Espanola de Proteccion de Datos, Costeja

2014

Privacy

5

Supreme Court, district court, labour court, magistrates’ court

Case C-​257/​14 Corina van der Lans v Koninklijke Luchtvaart Maatschappij NV

2015

Air transport; consumer protection

4

Small claims court

Joined cases C-​108 & 109/​ 97 Windsurfing Chiemsee

1999

Trademarks

4

Trademarks Registrar

Case T-​334/​03 Deutsche Post EURO EXPRESS GmbH v OHIM

2005

Trademarks

3

Trademarks Registrar

Case C-​299/​99 Philips Electronics NV v Remington Consumer Products Ltd

2002

Trademarks

3

Supreme Court, Trademarks Registrar

Source: Author’s own research from access to official and commercial databases.

286  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES by the Supreme Court in an appeal involving the Antitrust DG.73 Second place is shared by the United Brands case of 1978 and the Michelin case of 1983, both of them also dealing with abuse of a dominant position, and the Koninklijke KPN case of 2004, dealing with descriptive trademarks. These three decisions are cited in six different decisions. The rest of Table 12.3 is populated by several other trademark cases that are cited in between three and five different Israeli decisions each, except for one case in the field of privacy law and one in the field of air transport. The latter is the recent case of Lans v KLM, which defines the cases where an air carrier will be exempt from the obligation to compensate travellers for cancellation of their flight. The former is the famous Google v Costeja judgment on the ‘right to be forgotten’, which is discussed further below in section F.74

5.  The impact of the CJEU decisions that were cited I have also tried to examine the relative impact that the CJEU decisions that were cited had on the final rulings of the Israeli tribunals who cited them. Clearly, not every citation is similar to the other. Sometimes the case was only cited in relation to a peripheral issue, not material to the outcome of the case, or as part of a general background to the legal question that needs to be resolved. At other times, however, the case may have played a central role in convincing the court to rule the way it did. In between these two extremes lies a spectrum of degrees of the extent to which the CJEU case had an impact on the outcome. In order to try to get an idea of the actual impact that the CJEU decisions have had on the Israeli cases where they were cited, I read all of them and assessed, according to my own subjective impression of the case, the extent of the impact. For that purpose, I used a coding system of 1 to 5 based on the following criteria: ‘1’ —​‘Not at all’. This refers to a situation where the CJEU case did not have any impact on the final outcome, for instance because the Israeli court decided not to adopt the CJEU’s approach, or that the CJEU ruling was not relevant to the issue at hand. ‘2’ —​‘Marginally’. This refers to where the CJEU case(s) had only a marginal impact on the final ruling, for instance because it was cited in relation to a peripheral issue or as a general background, or where the CJEU case was cited in a dissenting opinion which was not adopted by the majority. ‘3’ —​‘Partially’. This refers to a situation where there is some correlation between the CJEU case(s) and the final ruling of the Israeli court, but only to a partial degree and where it seems that the CJEU rulings did not play a central role in leading the

73

74

CrA 2560/​08 State of Israel—​Antitrust Authority v Wohl (2009) (Justice Rubinstein). See section F.2 below.

THE IMPACT OF THE CJEU ON ISRAEL  287 court to its final ruling, for instance because many other legal sources (mainly Israeli, but possibly also other foreign sources) supported this final ruling. ‘4’  —​‘Significantly’. This refers to where there is much correlation between the CJEU case(s) and the final ruling of the Israeli court, and it seems that this case was one of the legal sources that led the court to its ruling. ‘5’ —​‘Decisively’. This code was given to decisions where there is much correlation between the CJEU case(s) and the final ruling of the Israeli court, and it appears that the CJEU case(s) had a decisive influence on the court’s ruling. Figure 12.3 below shows the results of this impact assessment. It distinguishes between four types of tribunals: the Supreme Court (blue); Antitrust (orange), which includes both the Antitrust Tribunal and the Antitrust DG; Intellectual Property (IP) Registrar (grey), which refers to the Patent and Trademarks Registrar; and Others (yellow), which includes all the remaining tribunals (namely, the district courts, the administrative courts, the labour courts, the magistrates’ courts, and the small claims courts). According to these findings, the greatest impact by CJEU cases can be seen in decisions of the Patents and Trademarks Registrar (almost all of which were on trademarks). From interviews that I have had with two of the former registrars75 in order to understand the reasons for their frequent citation of CJEU cases, the 16 14

No of citations

12 10 8 6 4 2 0

Not at all

Minor Supreme Court

Partly Antitrust

Significantly IP Registrar

Decisively

Other

Fig 12.3  Israel: Relative impact of the CJEU decisions cited Source: Author’s own research from access to official and commercial databases. 75 The interviews with Dr Meir Noam and Mr Noah Shlomovitz (the latter having been the Deputy Registrar) took place on 3‒4 January 2018. They were the authors of most of the decisions that cited the CJEU (eighteen out of twenty-​two).

288  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES following picture evolves. When considering IP cases, in particular trademarks, the registrars (or ‘hearing officers’, as some of those making the decisions are called) attach importance to the objective of achieving harmonization between their rulings and those of major foreign jurisdictions, in particular in Europe and North America. This is particularly relevant when the case deals with an international trademark that may come up in a foreign tribunal. Indeed, most of the cases where CJEU cases were cited involve foreign companies, or domestic subsidiaries of foreign companies, and international trademarks, where it is important that Israeli rulings should be harmonious with those of major foreign jurisdictions.76 The influence of EU law on trademarks, as well as CJEU decisions in this field, has also grown in Israel in recent decades, as a result of the United Kingdom’s membership of the EU. The reason is that since the Israeli Trademark Ordinance, which is a remnant from the British Mandate, is based on English law, it is only natural for the courts and for the trademark registrars to turn to English law and cases as a source of interpretation. But gradually, English trademark law became more and more influenced by EU regulations and CJEU rulings, and the leading text books on English trademark law (such as Kerly’s Law of Trade Marks and Trade Names, which is widely cited in Israeli trademark law77) started referring more and more to these EU sources of law.78 Hence, these sources also reached Israel and were cited more frequently by Israeli tribunals. I have also been told that the registrars found EU trademark law to be more consistent and uniform than US trademark law, which was found to suffer from inconsistencies and which varies from state to state. Hence, they often preferred to base their findings on EU law and CJEU precedents, more so than on US precedents. The second greatest impact can be found on the decisions of the Antitrust Tribunal and the Antitrust DG. This is also not surprising. Israeli’s antitrust law, the Restrictive Trade Practices Law, was originally drafted based on an English Act of Parliament79 and has several provisions that have been added over the years and which are heavily influenced by EU law.80 Indeed, recently, the name of the law 76 Out of the twenty-​one decisions dealing with trademarks, at least twelve involved foreign companies or international trademarks (ie trademarks used in many foreign countries). 77 A search in the Nevo data base came up with 131 cases that cite this book. 78 This development was noted by Judge Asher Grunis of the Israeli Supreme Court in Case CA 11487/​03 August Storck KG v Alfa Intuit Food Products Ltd PD62(4)1 (issued on 23 March 2008) para 19. 79 Israel’s Restrictive Trade Practices Law of 1988 is an improved version of the previous Restrictive Trade Practices Law of 1959, which was largely based on the English Restrictive Trade Practices Act of 1956. For a detailed account, see Michal (Schitzer) Gal, ‘Fifty Shades of Formica: Legal Realism in Israel’s Competition Law’ (2007) 23 Bar Ilan Uni L Rev (Mechkarey Mishpat) 709, 724 (in Hebrew). 80 For instance, the Restrictive Trade Practices Law, Art 29A (a provision added in 1996) is an almost word-​for-​word translation of the Treaty on the Functioning of the European Union (TFEU, previously, the EC Treaty), Art 102 dealing with abuse of a dominant position. Likewise, Art 15A of the Law (a provision added in 2000) adopts the system of block exemptions for restrictive arrangements that was very prevalent in the EU at the time.

THE IMPACT OF THE CJEU ON ISRAEL  289 was changed to ‘the Economic Competition Law’, and that of the Antitrust DG and Authority to ‘the Competition DG and Authority’,81 signifying yet another symbolic step towards the EU model.82 Moreover, EU competition law is one of the most advanced and developed systems of competition law, and it, together with US antitrust law, serve as the two major sources of inspiration for Israeli competition authorities.83 It is therefore only natural that these Israeli authorities, as well as the parties that appear before them, should refer to decisions of the CJEU, which is the court that hears appeals from decisions of the EU Commission in competition matters. Such references can also be found in the decisions of the Supreme Court and the district courts when dealing with competition law. By basing their decisions on the CJEU, the authorities also introduced more predictability into Israeli competition law, by allowing the economic actors to turn to legal systems that are much richer in precedents to guide them in what may be considered as permitted and what may not. In the decisions of the Supreme Court (in all fields), we find many cases where the impact of CJEU cases was marginal or partial. This result may reflect the fact that in major cases the Supreme Court will often present in its judgment a detailed and comprehensive discussion of the legal problem at hand, which will include comparative law sources, before proceeding to its ruling. Hence, it will sometimes also cite foreign precedents, including those of the CJEU, even when they are not central to the question which it needs to rule on, or even when it decides not to follow these CJEU cases. Another factor at work is the fact that, unlike lower courts, the Supreme Court almost always sits in panels of at least three judges, and we are therefore more likely to find CJEU cases cited in dissenting opinions.84 Nevertheless, in many decisions (eleven out of twenty-​eight, amounting to 39 per cent), the CJEU cases cited had a decisive impact (‘5’ decisions) on the Supreme Court’s rulings, or influenced the outcome to a large extent (‘4’ decisions). Some of those decisions are discussed in more detail in sections E and F below. 81 The change was made in 2019 by The Restrictive Trade Practices Law (Amendment No 21) 2019, which changed the name of the law to the Economic Competition Law (Art 1), the name of the tribunal to ‘the Competition Tribunal’ (Art 2(2)), and the name of the Antitrust DG to ‘the Commissioner of Competition’ (Art 2(4)). 82 In the United Kingdom, this field of law used to be called ‘restrictive trade practices law’, and in the United States it is called ‘antitrust law’. The term ‘competition law’ is used by the EU. 83 See eg Gal, ‘Fifty Shades’ (n 79) 760, who sees the growing reliance on US and EU competition law as a development that started in the 1990s and as reflecting a change in ideology of the DGs of the Antitrust Authority from distributive justice concerns to economic efficiency, as the basis and objective of competition law. By adopting whole provisions from EU law (such as TFEU Art 102 on abuse of a dominant position, and the idea of using block exemptions), she notes, the way was also cleared to adopt the interpretations that were given to them by the Commission and the CJEU. This meant that DGs could depart from previous more restrictive approaches to competition law that had been dominant in the past. 84 In two Supreme Court decisions, the CJEU citation appeared in a dissenting opinion, namely HCJ 698/​80 and HCJ 7052/​03.

290  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

E.  From Macro to Micro: Presentation of Some of the Important Judgments 1.  HCJ 698/​80 Qawasmeh v Minister of Defence (1980) The first Israeli decision ever to cite the (then) ECJ was the high-​profile case of Qawasmeh, which was decided in 1980. The case dealt with a petition to the High Court of Justice filed by the Mayors of Hebron and Halhul in the West Bank, who had been deported to Lebanon following the murders of six Jews in Hebron. The military governor of the area had used his authority under the Defence Regulations of 1945 (enacted during the British Mandate) to deport these individuals following their incitement to violence, which according to the governor had contributed to the murders, and after reaching the conclusion that their deportation was required ‘in order to preserve the safety of the public, protect the area and to ensure public order’. The original deportation order had been quashed by the Court because the deportees had not been given the right to a hearing prior to their deportation. They were therefore given the right to return and to appear before a special statutory committee. After hearing the evidence of the military governor and that of the deportees, the committee decided to uphold the deportation decision, a decision that was then challenged before the High Court of Justice (that is, the Supreme Court). The Court, in a majority decision, eventually upheld the decisions of the Committee and military governor. The petitioners relied mainly on Article 49 of the Fourth Geneva Convention of 1949, which forbids the deportation of protected persons from an occupied territory. The majority opinion held that this convention, including its Article 49, had not attained the status of customary international law, and therefore did not have direct effect. Hence, the petitioners could not rely on it in a domestic court of law. The dissenting judge (Haim Cohn), however, was of the opinion that Article 49 itself, unlike some of the other provisions of the Fourth Geneva Convention, does indeed reflect customary international law. To support his conclusion, Judge Cohn cites several foreign and international judgments and the writings of some international jurists. Among the judgments is the well-​known ECJ case of Van Duyn v Home Office issued in 1975.85 This case is well known in EU law, since it was the first British case ever referred to the ECJ, and also as the case that established that directives have potential for vertical direct effect. However, Judge Cohn relied on a different ruling found in the case, namely that under international law a state is precluded from refusing its own nationals the right of entry or residence.86 This dictum was made in order to justify the conclusion that a Member State can prevent a national of another Member State from taking gainful employment with a

85

86

Case C-41/​74 Yvonne Van Duyn v Home Office [1974] ECR 1337. ibid para 22. The citation of the Van Duyn case is found at page 642 of the Qawasmeh judgment.

THE IMPACT OF THE CJEU ON ISRAEL  291 body or organization on grounds of public policy, although no such restriction is placed on its nationals. Judge Cohn, on the other hand, relied on it to support the proposition that a country is precluded from deporting its own citizens, and that this is a principle of customary international law. Hence, he argues, Article 49 of the Fourth Geneva Convention precluding the occupying power from deporting residents of the occupied area also reflects customary international law. Since this citation is found in a dissenting opinion, and since it was only one out of several authorities cited to support the opinion, we consider it as one that was only ‘marginally’ influential (coded ‘2’ in our impact assessment presented in section D). Nevertheless, being the first ECJ citation ever, and given the importance of the judgment, we devote special attention to it. We can only speculate on what brought Judge Cohn to cite the ECJ, which up to then was an almost unknown tribunal in Israel, and never before cited. Was it his European background—​being a native of Lübeck, Germany, and having studied law at Goethe University in Frankfurt—​that made him interested in this new European institution? Or was it discussions he had had about the ECJ with Professor Chava Landau?87 Be that as it may, it took six more years for any other Israeli tribunal to cite the ECJ again, and ten years for the Supreme Court to do so. These citations were all in the same case, namely the landmark Nevo case, where the ECJ ruling clearly had a much more decisive effect. Because of its importance, this case is discussed in section E.2.

2.  HCJ 104/​87 Dr Naomi Nevo v National Labour Court—​the right of equal retirement age for women Dr Naomi Nevo was employed for many years as a sociologist by the Jewish Agency for Israel. On reaching the age of sixty, she received a notice from her employers that she was to retire on pension, in accordance with her employer’s pension rules. These rules, that were part of the collective labour agreement, to which Dr Nevo had consented when she started her employment, stated that the retirement age for men was sixty-​five and for women sixty. Since Dr Nevo was not interested in retiring from her job, she brought an action in the regional labour court asking for a declaration that the above provision was void as being discriminatory. The regional court dismissed her action. She then filed an appeal to the National Labour Court. This court, by a majority decision of five–​two judges, dismissed her appeal, holding that the differentiation between men and women in relation to the age of retirement is not a wrongful discriminatory measure.88 Rather, it is a protective measure benefiting women and 87 According to the author’s interview and correspondence with her. 88 Hearing 46/​73-​3 (National) Dr Naomi Nevo v General Federation of Labour in Israel PDA 18(1)197 (1986).

292  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES protecting their rights, similar to many other protective provisions in relation to women that are found in various laws. This provision also grants women a special privilege to retire with full pension five years before their male colleagues. The court cited the ECJ ruling in Marshall v Southampton and South West Hampshire Area Health Authority (1986),89 which ruled that a mandatory retirement age for women that was earlier than that of men constitutes discrimination on grounds of sex, contrary to Directive 76/​207. However, the court distinguished that case from the case at hand, because in Marshall the ECJ considered the mandatory retirement to be a ‘dismissal’, whereas in Israel retirement under a collective agreement which provides the retiree with an agreed pension is not a dismissal, but rather fulfilment of the agreement. The court even found support for its position in two other ECJ decisions, namely Roberts v Tate & Lyle Industries Ltd,90 and Burton v British Railways Board.91 A radical change such as the one sought by the appellant, ruled the National Labour Court, is something that can only be done by legislation or by collective negotiation.92 The two dissenting judges93 were of the opinion that in this day and age there is no legitimate justification for discrimination between men and women with regard to their retirement age, such as may have been justified in the past, when employment was in hard physical work. They also did not see an obstacle in the fact that the retirement age was part of a collective agreement that included a pension plan. One of the dissenting judges cited in this regard from the ECJ’s Marshall decision, which ruled that even if discriminatory provisions are part of collective agreements, ‘they shall be declared null and void’.94 They were therefore of the opinion that the appeal should be allowed and Dr Nevo (as well as other women in her situation) should be permitted to retire at the same age as men. The majority judgment was challenged before the Israeli Supreme Court (sitting as the High Court of Justice).95 Here, the rulings of the two labour courts were overturned, and the Court ruled that women could not be compelled to retire earlier than men. The Court therefore declared the provision to this effect in the collective agreement and its pension plan as totally void. In doing so, Judge Gabriel Bach, who wrote the main opinion, relied on the Marshall decision, among other things, calling it a 89 Case 152/​84 MH Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) [1986] ECR 723. 90 Case 151/​84 Joan Roberts v Tate & Lyle Industries Ltd [1986] ECR 703. 91 Case 191/​81 Arthur Burton v British Railways Board [1982] ECR 554. In the Arthur Burton and Joan Roberts cases, the ECJ held that the determination of a minimum pensionable age for social security purposes which is not the same for men as for women does not amount to discrimination prohibited (at the time) by Community law. The reason for this ruling was that the directive in question preserved the right of Member States to exclude from its scope the determination of pensionable age for the purposes of granting old-​age and retirement pensions and the possible consequences thereof. 92 Nevo v General Federation (n 88) 211. 93 Whose identity we do not know. 94 The Marshall case (n 89) para 15 (quoting Directive 76/​207). 95 HCJ 104/​87 Dr Naomi Nevo v National Labour Court (1990).

THE IMPACT OF THE CJEU ON ISRAEL  293 ‘compelling and leading example’ of the principle that has been recognized in ‘international case law’ according to which a gap between the mandatory retirement ages of men and women amounts to a prohibited discrimination. The fact that there may have been a good intention behind the distinction, namely to protect women and be considerate of the fact that most of them have had to handle births and child-​raising along with their careers, cannot justify the mandatory nature of the rule, held the Court, referring also to decisions by the British House of Lords. The appropriate way to take their different circumstances into consideration was to allow women to retire at an earlier age, while also allowing those women who want to work until the same age as their male colleagues to do so. Judge Bach also relied again on the Marshall decision in rejecting the claim that because the differential treatment was part of a pension scheme, it was not prohibited, and the Court should not interfere.96 Towards the end of the judgment, the Court raised the question whether its judgment could also be relied upon by women who retired at the age of sixty but have not yet reached sixty-​five, and may want to return to their jobs. While it refrained from making any explicit ruling on this question, the Court cited another ECJ case, namely Defrenne v SABENA, as an example of how the ECJ solved this question by ruling that its decision should only have prospective effect.97 It also referred to the book by Professor Chava Landau, The Rights of Working Women in the European Community.98 Following the Nevo litigation, between the National Labour Court’s ruling and that of the Supreme Court, the Knesset passed a law that changed the legal situation and gave women the option to retire at the same age as men.99 It was quite clear during the deliberations for the proposed law that it was the Nevo litigation that had prompted the proposal,100 and the Knesset’s decision to change the law. During these deliberations, the ECJ judgment on this subject was also mentioned by one of the bill’s supporters.101

96 ibid 765. 97 ibid 767. 98 Eve C Landau, The Rights of Working Women in the European Community (Office for Official Publications of the European Communities 1985). 99 The Equal Retirement Age for Male and Female Workers Law, 5747-​1987, passed in the Knesset on 17 March 1987. It provides, inter alia, that any provision in a collective agreement that requires women to retire at an earlier age than men is void. The law did not have retroactive application and therefore it did not apply to Dr Nevo. In fact, the Supreme Court could have concluded, from the need to pass the law, that without the new legislation the existing legal situation was that women did not have the right to retire at the same age as men. Instead, the Supreme Court concluded that this right existed based on existing principles of gender equality. 100 See the speech by MK Haim Ramon (Labour), Divrey HaKnesset, 11th Knesset, 283rd Session (20 January 1987) 52, in his presentation of the bill (which he initiated). There, he mentions expressly the recent decision of the National Labour Court, which rejected the petition of a ‘Jewish Agency employee’, because of its unwillingness to interfere in a collective agreement, ‘but recommended that the parties amend their agreement’. 101 See the speech by MK David Libai (Labour), Divrey HaKnesset, 11th Knesset, 283rd Session (20 January 1987) 66. MK Libai quotes the Legal Advisor to the Prime Minister’s Office, Nitza Shapira-​Libai

294  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Hence, here we have a landmark decision by the Supreme Court of Israel, which relies significantly on rulings by the ECJ (now CJEU) and where these rulings appear to have had a meaningful impact on the Israeli court’s conclusions, as well as on the decision of the Knesset to change the law. Clearly, they were not the only source of influence on the Supreme Court, which first and foremost must base its rulings on Israeli law, and does so in this decision, as well. However, the Court seems to have attached much importance to the ECJ decisions, which served to support its groundbreaking judgment. Additionally, the Knesset’s decision to change the law was based first and foremost on principles of equality, and on the change in women’s role in the workforce. However, the ECJ precedent provided helpful encouragement.

3.  The influence of the CJEU on Israeli competition law As we saw in section D above, competition law is one of the fields with the most citations of the CJEU (22 per cent)102 and where the influence is the greatest.103 One decision where the Supreme Court relied on EU law in general, and on an ECJ judgment in particular, to make an important ruling was in The State of Israel v Borowitz.104 This was an appeal against the conviction of some of the participants in ‘the insurance cartel’, which involved most of the country’s insurance companies. One of the claims by the convicted directors was that the Restrictive Trade Practices Law does not apply to the business of insurance, because this was regulated heavily by specific laws and regulations and monitored by the Supervisor of Insurance. This claim was rejected by the Supreme Court, which relied on the ECJ judgment in Verband der Sachversicherer v Commission (among other things).105 This was the first ECJ judgment that had held that European insurance companies were also subject to EU competition law, and could be found guilty if they violated the prohibition against anti-​competitive ‘decisions by associations’. The Israeli Supreme Court noted that this holding did not preclude the DG of the Antitrust Authority from issuing block exemptions pursuant to his authority under the law, as has been done in the EU by the EU Commission. (who happens to be his wife . . .) as the source of his knowledge about the ruling by ‘the European Court of Human Rights’, according to which compelling a woman to retire at the age of sixty, when men can retire at the age of sixty-​five, amounts to wrongful discrimination. It is clear that he meant the CJEU, and simply misnamed the court. Such confusion between these two courts was at the time (and still is today) quite common, and I have encountered it several times while conducting this research. Furthermore, no ECtHR case at the time involved such a ruling. On the other hand, Nitza Shapira-​Libai, the source of the information, was closely connected to the Nevo proceedings, which relied on the Marshall case and did not refer to any ECtHR case.

102

See Figure 12.2 above. See Figure12.3, and the text in section D.5. 104 Cr A 4855/​02 The State of Israel v Itamar Borowitz PD 59(6)776 (2005). 105 Case 45/​85 Verband der Sachversicherer v Commission [1987] ECR 405. 103

THE IMPACT OF THE CJEU ON ISRAEL  295 Throughout the judgment, the Court also cited extensively from an academic article in Hebrew by the present author discussing EU competition law as it applies to the insurance sector, and what Israel can learn from the EU experience in this field.106 Another topic of competition law where we can find significant influence by EU law and CJEU judgments is the question of how to relate to excessive pricing by dominant undertakings. This is an issue where EU law and US law take quite different approaches. Whereas the US competition authorities take the position that antitrust laws were not meant to curb monopolistic prices, their EU counterparts occasionally consider them as an ‘abuse of a dominant position’ prohibited under the Treaty on the Functioning of the European Union (TFEU) Article 102. This interpretation has been confirmed by several judgments of the CJEU.107 Economists are also involved in a vigorous debate on whether control of excessive prices by competition authorities would in fact promote or discourage competition, and on what the definition of ‘excessive prices’ should be.108 In Israel, too, this question is debated among academics,109 and was also raised in a case before the Supreme Court, who refrained from issuing a definite ruling on it.110 Such a definite ruling was, however, provided in Naor v Tnuva, a judgment given by Judge Esther Stemmer of the District Court of the Central District.111 The case dealt 106 The article cited is Arie Reich, ‘Regulating Competition in the Insurance Sector: Lessons from the European Community’ (2001) 16 Bar-​Ilan Law Stud 301 (in Hebrew). It is cited five times in the article, in relation to different issues. It provides an example of how a local academic writing about EU law, including judgments of the CJEU, can bring EU law to the knowledge and awareness of judges and have an influence on their rulings. 107 See eg Case 6/​72, Europemballage Corporation and Continental Can Co Inc v EC Commission [1973] ECR 215; Case 27/​76 United Brands v EC Commission [1978] ECR 207. 108 See eg the extensive discussion in Frederick Jenny, ‘Abuse of Dominance by Firms Charging Excessive or Unfair Prices: An Assessment’ (5 December 2016) accessed 6 May 2020. 109 Prof David Gilo is in favour of the EU approach, as expressed in his article:  ‘Excessive Price as Abuse of Monopoly Power’ (2016) 45 Mishpatim 761 (in Hebrew); and ‘A Coherent Approach to the Antitrust Prohibition of Excessive Pricing by Dominant Firms’ in Frederic Jenny and Yannis Katsoulacos (eds) Excessive Pricing and Competition Law Enforcement (Springer 2018), whereas Professor Michal Gal and Dr Hila Nevo argue against competition authorities acting against excessive prices, because of difficulties in determining what an ‘unfair price’ is, as well as due to other pragmatic considerations: Michal (Schitzer) Gal and Hila Nevo, ‘The Influence of Decision Making Theory on the Design of Legal Rules: Unfair Price as Abuse of Monopoly Power’ (2015) 45 Mishpatim 277 (in Hebrew); and Michal (Schitzer) Gal and Hila Nevo, ‘Regulating Unfair High Prices: Trojan Horse’ (2016) 45 Mishpatim 801 (in Hebrew). 110 LCA 2616/​03 Reiss v Isracard Ltd and others (2005). This was an appeal against a decision by the Tel Aviv District Court allowing a class action against several credit companies for alleged abuse of a dominant position due to excessive clearing commissions. For the sake of argument, the Supreme Court was willing to adopt the CJEU position that excessive pricing by monopolies is prohibited under TFEU Art 102, and hence also under Art 29A of Israel’s Restrictive Trade Practices Law. It was also willing to accept the criteria determined by the CJEU on how to define ‘excessive’ prices. Based on these ‘arguendo’ assumptions, the Court showed that the class plaintiffs had not presented enough evidence, as required in order to obtain approval for a class action, to prove excessive prices and abuse of dominance. The appeal was hence accepted and the District Court’s decision was set aside. However, there was never a definite decision, providing a ratio decidendi and binding precedence on the question itself. 111 ClassAS (District Central) 46010-​07-​11 Ophir Naor v Tnuva Food Industries Agricultural Co-​Op in Israel Ltd (5 April 2016) (published in Nevo).

296  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES with a class action against Tnuva, the country’s biggest dairy producer, which holds a dominant position in the cheese market, for charging excessive prices for its cottage cheese. The claimants argued that the excessive prices amounted to a violation of Article 29A of the Restrictive Trade Practices Law, 5748-​1988, which prohibits monopolies from charging ‘unfair prices’. Tnuva’s lawyers, on the other hand, argued that this prohibition only applied to predatory prices; that is, prices that are too low, not too high. When dealing with the dispute, the judge noted the difference between the US and the EU approach to this issue, as well as the argument between experts from academia.112 However, after noting that Article 29A originates from EU law, and quoting the explanations to the Israeli bill, which stated that it had been decided that the EU approach to monopolies is to be preferred, Judge Stemmer adopted the interpretation given by the CJEU to TFEU Article 102. In doing so, she also relied on the wording of Article 29A, on a background paper published by the Organization for Economic Cooperation and Development (OECD), on the opinion of the DG of the Antitrust Authority, and on what she considered to be the best policy for the Israeli economy. When turning to the question of how to determine what a ‘fair price’ is (in order to quantify the degree of abuse), Judge Stemmer again turned first to EU law, ‘because of the similarity in language of the two laws’, citing some of the judgments of the CJEU on this point. She first referred to General Motors Continental NV v Commission,113 where the CJEU for the first time opined on the meaning of ‘unfair price’, stating that a price ‘which is excessive in relation to the economic value of the service provided’ can be considered as unfair.114 She then referred to United Brands Co v Commission,115 where the CJEU expressed the test as whether the difference between the costs incurred and the price charged is excessive, and if the answer is affirmative, whether the price is unfair in itself or when compared to competing products.116 Finally, Judge Stemmer cited the EU Commission’s decision in the case of Scandlines Sverige AB v Port of Helsingborg.117 There, the Commission followed the CJEU’s approach of comparing between the price charged and the costs incurred to see if the difference was excessive. However, the Commission noted that this was just the first step in determining whether the price is unfair or excessive. The second step, following the United Brands judgment, is to examine whether the price was determined with a reasonable relation to the economic value of the product.118 Only if it is found that there is no such reasonable relation can one determine that the price is unfair. The Court noted that after the Commission had found that the price charged by the Helsingborg port was higher than its expenses, 112 ibid para 10. 113 Case 26/​75 General Motors Continental NV v Commission of the European Communities [1976] ECR 1367. 114 ibid para 12. 115 Case 27/​76 United Brands Co v Commission of the European Communities [1978] ECR 207. 116 ibid para 253. 117 Case COMP/​A.36.568/​D3 Scandlines Sverige AB v Port of Helsingborg [2006]. 118 ibid para 150.

THE IMPACT OF THE CJEU ON ISRAEL  297 the Commission also compared it to prices charged from other types of ships, as well as the prices in the parallel port (Elsinore) and in other ports (Calais and Dover). It also examined the reasonable relation between the price and the economic value of the product, a test that takes into consideration supply and demand, including the natural value of the port that is unrelated to the costs incurred, arriving at the conclusion that the price charged by the port of Helsingborg was not excessive or unfair. The Court also reviewed the case law of several EU Member States, as well as that of other jurisdictions that prohibit excessive or unfair pricing by monopolies. After stressing that she was not obliged to adopt the CJEU approach, Judge Stemmer writes, however, that ‘it does teach us about the prevailing thoughts regarding the interpretation of the provision that served as the inspiration for Article 29A’, according to which the test of an unfair price which amounts to an abuse of a dominant position is when the price is higher than the economic value of the product. She also adopted this criterion as the correct one under Israeli law, while recognizing that it is not easy to implement. According to this criterion, one must compare the price of the product in question to the price of the same product in another market; or compare it to the prices of other products with similar qualities in the same market; or compare it to the prices of like products sold by the same producer; and so on. These comparisons will allow us to answer the question whether the monopoly holder charged a price that is higher than what the price would have been under competitive conditions.119 The decision to adopt the CJEU’s approach to these questions was also followed in a later judgment by the Tel Aviv District Court, in the case of Weinstein v Dead Sea Works Ltd.120 In this decision, Judge Ofer Grosskopf not only adopted the position that excessive pricing can constitute an abuse of a dominant position, while referring to several CJEU decisions to this effect, but also adopted the EU position that allows claims for both direct and indirect purchasers. This position was first adopted by the CJEU in several decisions,121 and later in Directive 2014/​104,122 which was also quoted by Judge Grosskopf. In doing so, he preferred the European approach over the US one, according to which only those who purchased directly from a seller can sue for violations of antitrust laws.123 Hence, the judge allowed a class action for alleged excessive pricing by farmers,

119 Naor v Tnuva (n 111) para 36. 120 CC 41838-​09-​14 (Tel-​Aviv District Court) Weinstein v Dead Sea Works Ltd. (29 January 2017) (published in Nevo). 121 See eg Joined Cases C-​295/​04–​C-​298/​04, Manfredi v Lloyd Adriatico Assicurazioni SpA [2005] ECR I–​06619. 122 Directive 2014/​104/​EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and the European Union [2014] OJ L2014 349 R 0001. 123 See Illinois Brick Co v Illinois, 431 US 720 (1977); Kansas v Utilcorp 497 US 199 (1990).

298  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES who were the final consumers of fertilizers produced by the defendant, but not its direct customers.124 This position, which prefers to follow the EU approach in this field, and not the US one, was also adopted by the Israeli Antitrust Authority in its detailed public statements on this topic. The first such statement was issued in 2014,125 and the current one in 2017.126 In it, the Authority notes that Article 29A of Israel’s Restrictive Trade Practices Law is based on EU law, namely TFEU Article 102: and therefore special emphasis should be given to European law when interpreting monopoly law in Israel, in particular in an issue such as this, where Israeli case law is sparse.127 . . . European law and European Competition Commission policy are an interpretive source in shaping enforcement policy. As mentioned, Section 29A of the Law was inspired by Section 102 of the TFEU, and the Authority’s position is that the considerations to be exercised with regard to enforcement shall be similar to those common worldwide.128

The statement then goes on to note that European law has been interpreted in the case law as prohibiting charging an unfairly high price, but that the prohibition is enforced rarely and in a restrained manner. In doing so, the EU Commission recognizes its preference for enforcement directed towards competition, and not towards price regulation, as well as the difficulties involved in enforcement against an ‘unfairly high price’. The Israeli Antitrust Authority also refers to the position expressed by the EU Commission in an OECD Roundtable devoted to this topic that took place in 2011, a position that is also reflected in European case law, according to which the prohibition against charging an unfairly high price is enforced in the EU only as a last resort. As is evident from the CJEU case law, this is done only in markets with an entrenched dominant position, where high prices and profits prevail over time, and where entry and expansion of competitors could not be expected to ensure effective competition in the foreseeable future.129 The Authority 124 The European approach was also adopted by Judge Grosskopf in ClassASCEDC 36098-​05-​ 16 Zadok v Strauss Group (although it disallowed the class-​action suit), and by Judge Almagor in ClassASTADC 14-​11-​18298 Israel Consumer Council v Tnuva, both decisions from 2019. 125 The Antitrust Authority, Public Statement 1/​14:  Public Statement regarding the Prohibition on Charging an Unfair Excessive Price by a Monopolist (9 April 2014). 126 The Antitrust Authority, Public Statement 1/​17: The Antitrust Director General’s Considerations in Enforcing the Prohibition against Unfairly High Prices (28 February 2017):  accessed 6 May 2020. 127 ibid 8. 128 ibid 13 (emphasis in the original). 129 As is noted by the Commission in its OECD position paper at 317: In General Motors [Case 26/​75 General Motors Continental NV v Commission [1975] ECR 1376] and Deutsche Post there was a legal monopoly, in Bodson [Case 30/​87 Corinne Bodson v Pompes Funebres [1998] ECR  2479] the dominant position was based on an

THE IMPACT OF THE CJEU ON ISRAEL  299 declares that it will adopt this approach in its actions in relation to the Israeli market. This statement replaces the previous statement of 2014, and abolishes the ‘safe haven’ for prices that are not more than 20 per cent higher than production costs, which was introduced by the previous statement. In doing so, the Authority declares that it further aligns its policy with the EU approach. Being a statement of the enforcement policy of an executive branch, the impact of the CJEU on its approach therefore also belongs to section F dealing with CJEU influence on Israeli regulation. Indeed, there are several such statements of policy by the Antitrust DG, where one often finds reliance on CJEU judgments, as well as on judgments from the United States and from other jurisdictions.130

F.  CJEU Influence on Israeli Regulation 1. The Bosman decision and its impact on the regulation of Israeli sports In 1995, the CJEU issued a landmark decision in the case of Union Royale Belge des Sociétés de Football Association ASBL v Jean-​Marc Bosman.131 The decision banned restrictions on players from a foreign EU country within national leagues and allowed players in the EU to move to another club at the end of a contract without a transfer fee being paid. In so ruling, the Court put an end to the quotas on foreign players that a team was allowed to use, which was common in many national football and basketball leagues in Europe, to the extent that they related to EU citizens. However, quotas could still be maintained in relation to non-​EU players.132 Since the decision was based on the internal EU principles of freedom of movement of workers and freedom of association, this would seem to be an unlikely source of influence on non-​European countries, such as Israel. Nevertheless, for reasons that accumulation of exclusive concessions which shielded a significant part of the market from competition, in SACEM [Case 110/​99 Lucazeau v Sacem [1989] ECR 2811] a national monopoly based on network effects, in Helsingborg a kind of natural monopoly and in Rambus a dominant position based on a lock-​in effect once an industry standard has been adopted. The only exception is the United Brands case, which concerned the market for (green) bananas, but in the end the Court did not find excessive prices in this case [references to cases not in the original]. 130 One example is the statement issued in 2018 by the DG relating to block exemptions and individual exemptions to agreements where the restriction on competition is ancillary to a beneficial cooperation arrangement (Policy Statement 1/​18). This statement cites several CJEU judgments as the basis for its policies. 131 C-​415/​93 Union Royale Belge des Sociétés de Football Association ASBL v Jean-​Marc Bosman [1995] ECR I–​4921. 132 In later rulings, the Court widened the prohibition also to some non-​EU countries with which there were association agreements that prohibited discrimination against their workers. See Case C-​ 265/​03 Igor Simutenkov v Ministerio de Educación y Cultura and Real Federación Española de Fútbol. [2005] ECR I-​02579.

300  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES will be explained, the Bosman decision had a profound effect on professional sport in Israel. For several decades, Israel has been a member of European sports federations (Union of European Football Associations (UEFA) in football, Fédération Internationale de Basketball (FIBA) Europe in basketball, and so on). Therefore, whenever Israeli teams play in sports events organized by these federations, they are subject to the rules imposed by those federations. Hence the Israeli teams were also subject to the quotas on foreign players determined by the European federations and applicable to all EU clubs. When the Bosman decision was issued by the (then) ECJ in 1995, it forced the federations to change their rules and to abolish the quotas to the extent that they related to players from other EU countries.133 These players, who then became known as ‘Bosman Players’, could therefore also be recruited to Israeli teams, in addition to the permitted quota of other nationalities.134 While this only related to European events, such as the FIBA Euro League and the UEFA Champions League, at the same time it created pressure on the Israeli federations to ease their restrictions on foreign players in relation to national leagues as well. Clubs needed to develop their teams and make them play well together, and it is difficult for one club to maintain different teams for different leagues. In 1998, the Israeli Basketball Association therefore allowed each club to employ one ‘Bosman Player’ in the Israeli league, in addition to the other foreign players that were allowed,135 and later on, in 2001, the quota was increased to two ‘Bosman Players’.136 Similar developments occurred in football.137 This increase in foreign players had a profound impact on the nature of these sporting events, on the players, and on the clubs. It raised the level of the games, attracted bigger audiences, created more lucrative broadcasting contracts, and raised the salaries of the players, as well as the financial gains of the clubs.138 Israeli teams, in particular Maccabi Tel-​Aviv’s basketball club, became among the best in 133 This was also recognized by the Israeli Supreme Court in its judgment CrA 5102/​03 The State of Israel v Danny Klein (2007). For instance, in para 21 of the judgment, after citing the Bosman judgment of the CJEU, the Court says: ‘The new rules adopted in the European Basketball world have led to a change in the regulations of the Basketball Association in Israel, and quotas have been fixed for foreign players and Bosman players within the local teams.’ See also CrC (Jerusalem District Crt) 1231/​01 The State of Israel v Avraham P’lada (issued 9 January 2003) para 6. 134 At a later stage (around 2004‒05), a new term was added: ‘Bosman Players B’ (as distinct from ‘Bosman Players A’). This related to players from East European countries that were not EU members, but that received the right to equal treatment of their workers by means of bilateral association agreements with the EU. As a result of the ECJ ruling in Simutenkov (see n 150g), players from these countries could also not be counted in foreign quotas, and again, this new rule was extended also towards Israel, when participating in European events. 135 See CrA 5102/​03 (n 133) para 21. 136 Elad Malka, ‘The Regulation that Ruins our Basketball’ (15 June 2017) Mida (in Hebrew) accessed 6 May 2020. 137 See eg Amir Lopowitz, ‘Foreign Athletes in Israel’ (2002) The Knesset—​Centre for Research and Information, 4 (in Hebrew) accessed 6 May 2020. 138 ibid 5‒6 (quoting the Gelbard Committee on the Inclusion of Foreign Athletes in Israeli Sport, appointed in 2000 by the then Sport Minister Matan Vilnai) (in Hebrew).

THE IMPACT OF THE CJEU ON ISRAEL  301 Europe.139 At the same time, it also increased the gap between the rich, elite clubs and the poorer ones.140 Once the clubs saw the impact of these changes, the pressure increased even further on the federations to abolish the foreign players’ quotas altogether. Hence, in the 2006/​07 season, quotas were abolished in the Israeli Basketball League, with only some restrictions maintained occasionally, designed to encourage domestic players and to protect ‘national pride’.141 In football, the current rule is that a club can sign up to six foreign players, much more than they were allowed before the Bosman decision. Eventually, the distinction between ‘Bosman Players’ and other foreign players was dropped, but, still, the Bosman decision and its impact on the nature of popular ball games (basketball, football, handball, and volleyball) was instrumental in generating the change.142 As pointed out by Joanne Scott in her contribution Chapter 2 of this volume,143 this is a distinct example of what Anu Bradford has called ‘the Brussels Effect’, namely a situation in which third-​country actors decide to comply with EU standards even for domestic activity unrelated to the EU, because they find that it is not economically, legally, or technically practical to maintain different standards in non-​EU markets.144 The Israeli teams and sport federations reached the conclusion that it is not feasible to maintain vastly different standards for the same teams when competing in Israeli events, and eventually adopted the rules applicable in the EU as a result of the Bosman decision.

2.  ‘The right to be forgotten’—​Google Spain v Costeja One of the CJEU’s most famous cases in recent years is Case C-​131/​12 Google Spain SL Inc v Agencia Española de Protección de Datos, Mario Costeja González issued in 2014.145 In this case, the CJEU ruled that an internet search engine operator is 139 Maccabi won the EuroLeague in 2001, 2004, and 2005, and made it to the finals in 2006 and 2008. Another Israeli basketball team, HaPoel Jerusalem, won the ULEB cup in 2004 and reached the semi-​final in 2006. 140 See eg Uri Shkedi, ‘How the Bosman Law Changed the Face of Basketball’ (15 December 2010) Walla News (in Hebrew) accessed 6 May 2020; Dor Bloch, ‘Jean-​Mark Bosman: The Moses of the Football’ (5 April 2015) Ha’aretz (in Hebrew) accessed 6 May  2020. 141 The Federation imposed the so-​called ‘Russian Law’, according to which at all times there must be at least two Israeli players (out of five) on the court. In the 2009/​10 season, a restriction was imposed according to which a club could sign at most six foreign players, and in the 2012/​13 season the Russian Law was adopted again. 142 For a discussion of the Bosman case and its influence on sports in the EU, see Daniel Schmidt, ‘The Effects of the Bosman-​Case on Professional Football Leagues with a Special Regards to the Top-​Five League’ (2007) BA thesis for the discipline European Studies, under the supervision of Prof Dr Ramses A Wessel, University of Twente, Netherlands. 143 Chapter 2, section C. 144 Anu Bradford, ‘The Brussels Effect’ (2015) 107 Nw U L Rev 1. 145 Case C-​131/​12 Google Spain SL Inc v Agencia Española de Protección de Datos, Mario Costeja Gonzalez [2014] ECLI:EU:C:2014:317.

302  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES responsible for the processing that it carries out of personal data which appear on web pages published by third countries. Therefore, if following a search on the basis of a person’s name, the list of results displays information on this person which they consider to be harmful to their reputation or privacy, the person in question may request the operator to remove such information from the list of results. If the operator does not grant the request, the affected person may bring the matter before the competent authorities in order to ensure removal. The ruling was based on Directive 95/​46/​EC.146 However, the most sensational part of the judgment was the Court’s ruling that the person in question also had the right in some circumstances to demand the removal of true and accurate information on the basis that it is now ‘irrelevant’. Hence, they could demand removal of information about debt recovery proceedings that took place against them sixteen years previously and that had since then been settled. The Court ruled that the person’s right to privacy and right of protection of personal data under Articles 7 and 8, respectively, of the Charter of Fundamental Rights of the EU override, as a rule, not only the economic interest of the operator of the search engine, but also the interest of the general public in finding that information in a search relating to the person’s name. This judgment confirmed the so-​called ‘right to be forgotten’ and received much publicity all over the world, including in Israel.147 According to my findings, this CJEU judgment has been cited five times by Israeli tribunals: twice by the Supreme Court,148 once by the district court,149 once by the magistrates’ court,150 and once by the National Labour Court.151 In none of them was it very influential. Rather, it seems that the case was mentioned because of its fame and because the case at hand was somewhat reminiscent of it. However, a potentially more important influence is a Knesset bill proposing to adopt the ‘Right to be Forgotten’ as part of Israel’s Protection of Privacy Law, 5741-​1981. The

146 Directive 95/​46/​EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281, 31. 147 See eg ‘Europe: Google Must ‘Forget’ Information about Private Persons’ (13 May 2014) YNet (in Hebrew) https://​www.ynet.co.il/​articles/​0,7340,L-​4519339,00.html; ‘The Right to be Forgotten: Google Receives Thousands of Requests’ (1 June 2014) YNet (in Hebrew) www.ynet.co.il/​articles/​0,7340,L-​ 4525844,00.html accessed 6 May 2020 (YNet is Israel’s most popular news website. ‘The Court in Europe: Google Must Grant the Right to be Forgotten’ (13 May 2014) Ha’aretz accessed 6 May 2020. 148 HCJ 5870/​14 Chashavim h.p.s. Business Information Ltd. v Court Administration (2015). CA 1139/​17 Advocate Jonathan Miller v. Haaretz Newspaper Publisher Ltd. (2017). (In this case, the Google case appears in the decision as part of the pleadings of both the appellant and two of the respondents, without mention of its name but as a judgment by the ‘Court of Human Rights of the European Union’ (sic), where it is very clear that they refer to the Google v Costeja case by the CJEU. The Supreme Court itself does not mention the case in its very short reasoning for dismissing the appeal.) For a discussion of this case, see Tamar Gidron and Uri Volovelsky, ‘The Right to Be Forgotten: The Israeli Version’ (2018) 34 CLSR 824. The authors argue that the case was a missed opportunity for the Israeli Supreme Court to recognize the right to be forgotten under Israeli Law. 149 LCA (Dist TA) 29227-​02-​15 Oxman Kloistero v Suberi (2015). 150 CC (Mag TA) 49918-​05-​12 Savir v Bar Noy (2014). 151 LabA (National) 13359-​12-​13 Maanit v Jane Doe (2014).

THE IMPACT OF THE CJEU ON ISRAEL  303 bill was introduced in 2014152 by a group of seven Members of the Knesset from six different parties.153 It was reintroduced in 2016,154 and then again in 2017.155 All of these bills mention expressly in their explanatory part the CJEU judgment that recognized the ‘right to be forgotten’. The bills, which are quite similar in their wording, propose to protect the right of privacy also in relation to the internet and to search engines. They propose to make it possible for a person to remove from search engines information which violates their privacy or defames their reputation, and thereby harms them. Removal will be possible only after the person has turned to the operator of the search engine and been refused, and after the court has considered the appropriate balance between the public interest in the availability of the information and the harm to the individual. To date none of the proposals have been adopted. It appears that there is opposition to them from various groups156 and that the current ruling coalition is not in favour of them. If they do get adopted eventually, whether in the present or in a changed version, or perhaps even by judicial creative interpretation of current laws,157 that will no doubt mark an important impact of the CJEU on Israel’s legal system.

G.  Summary and Conclusions As this research has shown, there is a growing awareness of the CJEU and its rulings in Israel. This is reflected in a growing number of citations by courts and tribunals. All in all, we found 116 Israeli decisions that cited 268 different CJEU decisions and holdings. In relation to the total number of decisions, and compared to the amount of citations of other foreign judgments by Israeli tribunals, these are still low numbers. Nevertheless, the number has been on a sharp rise in the past decade, so we can expect the relative impact of the CJEU to increase in the future. The fields where the greatest impact was found were trademark law and competition law. However, increasing impact was also found in labour law, fundamental

152 Proposed Bill, Protection of Privacy (Amendment—​The Right to Be Forgotten) Law, 5774-​2014, 19th Knesset, Bill 2648/​19/​P. 153 The Knesset Members who proposed the bill were: Ofer Shelah and Karine Elharrare (Yesh Atid); Moshe Gafni (United Torah Judaism); Yariv Levine (Likud); Mickey Rosenthal (Labour); Ayelet Shaked (Jewish Home); and Hamad Amar (Yisrael Beiteinu). 154 Proposed Bill, Protection of Privacy (Amendment—​The Right to Be Forgotten) Law, 5776-​2016, 19th Knesset, Bill 3066/​20/​P. This bill was proposed by MK Ofer Shelah (Yesh Atid) and MK Uri Maklev (United Torah Judaism). 155 Proposed Bill, Protection of Privacy (Amendment—​The Right to Be Forgotten) Law, 5777-​2017, 21th Knesset, Bill 3867/​20/​P. This time, the bill was proposed by MK Meirav Ben-​Ari (Kulano). 156 See eg the position of the Israel Democracy Institute, as expressed in its opinion of 11 October 2015, which is opposed to the bills:  accessed 6 May 2020. 157 See Gidron and Volovelsky (n 148), who argue in favour of employing the tort of negligence in order to protect the right to be forgotten in appropriate cases.

304  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES rights, patent law, and immigration law. Considering the wide influence that decisions in these fields have, in particular when they are issued by the Supreme Court or the National Labour Court, one should not underestimate the importance of this increasing impact of the CJEU. Some of the important decisions issued by these courts have been discussed in this article. The article has also shown some instances where CJEU rulings have had an actual or potential impact on legislation and regulation of certain fields in Israel, namely the fields of popular sports, labour law, privacy law, and competition law. The influence of the CJEU is not a result of a sense of obligation on the part of judges or regulators, considering that the ‘approximation of laws’ clause in the EU–​Israel Association Agreement is a weak and narrow provision. Rather it is a spontaneous one, resulting sometimes from the reputation of the CJEU and the soundness of its rulings, and sometimes from the affinity of the Israeli law in question with EU law, or from the desire of the decision makers to obtain harmony in fields transcending national boundaries. It should be noted that this research has only reported express citations of the CJEU by Israeli tribunals and assessed the impact of those citations. One must remember, however, that there may also be an indirect impact of CJEU decisions that is hard to discover and to measure. For instance, a Supreme Court judgment that was influenced by a CJEU decision may be cited and followed hundreds of times by lower courts, but their decisions will not appear in our tables if they do not refer expressly to a CJEU decision. Likewise, EU legislation that is influenced by CJEU rulings and cited by Israeli courts or has influenced the Israeli legislator, will also escape our attention. Courts may also cite textbooks or academic articles on EU law that are based on CJEU rulings, but if the citation from such a source does not mention the CJEU ruling on which it is based, or if footnotes are omitted, that court judgment will also not appear in our tables. Hence, the impact of the CJEU may be greater than we know.

13

The Impact of the Court of Justice of the European Union on Jordan Abdullah Nawafleh

A.  Introduction The 1990s were considered a crucial stage in the Euro-​Mediterranean cooperation project, which contributed to the establishment of a series of conferences. One of these was the 1995 Barcelona Conference, which witnessed the launch of the Euro-​ Mediterranean Partnership Strategy, aimed at creating peace and stability in the region based on the principles of respect for human rights and democracy, deepening mutual understanding among the peoples of the region, promoting peaceful co-​ existence among them, and creating a common economic prosperity through the gradual establishment of a Euro-​Mediterranean Free Trade Area by 2010. The Jordanian–​European Association Agreement was signed on 24 November 1997 and came into force on 1 May 2002, after the process of ratification was completed by all European parliaments and the Jordanian Parliament. The agreement is in line with the Jordanian government’s move to strengthen economic and political cooperation with European Union (EU) countries, to move towards economic openness, expand markets, and encourage direct investment in Jordan. Cooperation is promoted through the Association Agreement along three main axes:  political and security, social and cultural, and economic and financial. However, this chapter aims to examine the influence of judgments of the Court of Justice of the European Union (CJEU) on Jordan’s judicial system. The following sections describe the Jordanian legal system, the EU–​Jordan relationship, and the influence of CJEU judgments on Jordan. The chapter concludes with a summary and policy recommendations.

B.  Economic Development in Jordan The Hashemite Kingdom of Jordan (hereinafter ‘Jordan’) is a small Arab country in the Middle East, a country that lacks a supply of water and has only a few natural resources, such as phosphate and potash. The Jordanian economy has traditionally

Abdullah Nawafleh, The Impact of the Court of Justice of the European Union on Jordan In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0013.

306  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES been dependent on foreign aid from rich Arab oil producers, international donors, tourism, and remittances from its citizens working abroad. Due to its geography and political history, Jordan’s economy has been affected more than other countries in the region by international financial crises. Economic development and attracting foreign investment are key issues facing nations, requiring state intervention to create a legal framework for economic and social policies, with the primary aim of boosting the national economy.1 The decade 1990‒2000 was a period of important political and economic reform in Jordan, reform that has brought a fundamentally new attitude towards governance, in which legislation has become the major framework for the organization and operation of the Jordanian Government. Indeed, Jordan has generated an extraordinary volume of legislation since 1989, in order to implement economic reforms. This legislation has been used to frame economic activity; to express policies of state macroeconomic control and facilitate their implementation; to give legal recognition to new rights and interests; and to create a suitable and attractive business environment.2 The World Trade Organization (WTO) members approved Jordan’s application for WTO membership on 24 November 1999. On 24 February 2000, the Jordanian Government approved the Law on Jordan’s Accession to the WTO, and Jordan became the 136th Member of the WTO in April 2000. Indeed, the accession of Jordan to the WTO was an important stage in the history of the Jordanian legal system. The legislative reform undertaken by the government helped it to participate effectively in the negotiations, enabled its economy to comply with international economic standards, and enabled it to live up to its commitments under the WTO agreements.

C.  The Jordanian Legal System The Jordanian legal system stems from the civil legal system. However, legal scholars in Jordan argue that it is mixed, and represents an amalgamation of rules and principles borrowed from Islamic law, civil law, and common law systems.3 Jordan was part of the Ottoman Empire until the First World War, and then was placed under an indirect form of British Mandate rule. The Ottoman legal system was retained, and in 1927 many Ottoman laws were re-​enacted with some 1 Successful examples are countries such as Ireland and Singapore. 2 See eg Civil Procedure Law no 24 of 1988, amended by Law no 14 of 2001, Law no 26 of 2002, Law no 20 of 2005, and Law no 16 of 2006; Criminal Procedure Law no 9 of 1961, amended by Law no 16 of 1991, Law no 16 of 2001, Law no 76 of 2003, and Law no 15 of 2006; Implementation Law no 36 of 2002, amended by Law no 20 of 2003. 3 Zaid Muhmoud Agaileh, ‘Legal Extension of the Term of the Lease:  a Comparative Study of Jordanian and English law’ (2001) PhD thesis, South Bank University; see also Bianca C Isaias and Fred Jennings, ‘Overview of the Hashemite Kingdom of Jordan Legal System and Research’ (2013) accessed 6 May 2020.

THE IMPACT OF THE CJEU ON JORDAN  307 alterations. The Hashemite Kingdom of Jordan was established as a fully independent state in 1947. The first constitution was adopted by the Legislative Council on 28 November 1947, and the Government of Jordan embarked on the process of developing a national legal system to replace the laws of the Ottoman Empire. The Constitution of the Hashemite Kingdom of Jordan of 1952 was adopted on 1 January of the same year, and is still in use today.4 The first chapter of the Constitution declares that the country is a hereditary monarchy with a parliamentary system. Chapter 2 outlines the rights and duties of Jordanians and guarantees their rights of equal opportunity in employment and education. Personal freedoms include freedom from discrimination based on race, religion, or language. Freedom from arrest, imprisonment, forced residence and forced labour, exile, expropriation of property without due legal procedure, and freedom of worship, the press, opinion, petition, and peaceful assembly—​all are guaranteed within the limits of the law, provided that their objectives are lawful. With respect to the separation of powers, the 1952 Constitution sets a clearly determined jurisdiction for each of the three branches of the state.5 A Civil Procedure Code was enacted in 1952, replacing the Ottoman Majalla of 1876. In December 1955, Jordan was admitted to the United Nations as a full member. The first Jordanian Civil Code was enacted in 1976 as a temporary law, the Code drawing from Syrian legislation (which in turn was modelled on the Egyptian Civil Code of 1948 and based on the French Civil Code system). However, this code became permanent in 1996. The sources of Jordanian law are legislation, Islamic law (unlike many other Arab constitutions, the 1952 Jordanian Constitution does not assert that Islamic law is the sole source of law), custom, judicial decisions, and the writings of jurists. Nevertheless, the majority of Jordanian legal rules are influenced by the rules of morality, which have been influenced by the Islamic religion and its moral values.6

1.  Law and the law-​making procedure Jordanian private law consists of two categories: civil, codified in Civil Code no 43 of 1976, and commercial, codified in Commercial Code no 12 of 1966. Some specific rules, commercial or civil, have been enacted in private codes, such as the Companies Law no 22 of 1997. However, Articles 2, 4, and 5 of the Jordanian 4 The 1952 Jordanian Constitution, amending the 1947 Constitution. Royal Hashemite Court, ‘The Constitution of The Hashemite Kingdom of Jordan’ accessed 6 May 2020; the Jordanian Constitution of 1952 was amended in 2016. 5 1952 Jordanian Constitution, Arts 24, 25, 26, and 27. 6 N Khateeb, Terminology of Law (‘mustalahat qanooneyyeh’) (Mu’tah University Press 1986) cited in Agaileh (n 3).

308  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Commercial Code no 12 of 1966 state that the sources of commercial legislation in Jordan include commercial codes, the Civil Code, and trade custom. With regard to Civil Code legislation as a source of commercial practice, Article 2(1) of the Jordanian Commercial Code states that if no adequate legislation is available, then the rules of the Civil Code should apply. Legislative powers are shared by the King and the National Assembly (Majlis al-​ ’Umma), which comprises members of the Senate (Majlis al-​Ayan) and the House of Deputies (Majlis al-​Nuwaab). The Senate consists of fifty-​five seats; members—​ appointed by the King—​are qualified persons possessing knowledge and experience in various branches; they serve four-​year terms.7 The House of Deputies (Majlis al-​Nuwaab) consists of 110 seats; members are elected by popular vote, based on proportional representation, to serve four-​year terms starting from the date of the announcement of results of general elections in the Official Gazette. However, the House of Deputies alone is empowered to pass a vote of confidence or no confidence in the government. Lawmaking in Jordan goes through several processes: Drafts of laws are usually submitted to the Council of Ministers for consideration by the Ministry or Agency concerned with the subject matter of the law. Once approved by the Council of Ministers, the law is then sent to the Bureau of Legislation to be put in the proper legal form, before being submitted to the House of Deputies. The House is entitled to accept, amend, or reject the draft law, but in all cases, the House of Deputies must refer the draft law to the Senate. If the Senate disagrees with the draft law or decides that there should be an amendment, the draft law is returned to the House of Deputies. Meetings of both houses must be public. Secret meetings can be held at the request of the government, or five senators or deputies. If such a request is made, the Senate and House of Deputies must decide whether it should be accepted or rejected.8 However, if both Houses approve the draft law, then it is submitted to the King for his consent and signature. Once this step has been completed, the law becomes effective thirty days after publication in the Official Gazette or as stipulated in the law itself. Publication is made to enable individuals to know the law, in order to comply with it. Under Article 93(2) of the 1952 Jordanian Constitution, any Act of Parliament comes into force after its promulgation by the King and the lapse of thirty days from the date of its publication in the Official Gazette, unless otherwise specified by the Act itself, as noted above. International agreements and treaties signed by Jordan need to be ratified by Parliament only if they entail expenditure on the part of the Treasury or affect the rights of Jordanian

7 United Nations Department for Economic and Social Affairs and United Nations Development Programme, ‘Public Sector Transparency and Accountability in Selected Arab Countries: Policies and Practices’, ST/​ESA/​PAD/​SER.E/​71 (United Nations  2004). 8 1952 Jordanian Constitution, Art 85.

THE IMPACT OF THE CJEU ON JORDAN  309 citizens.9 All treaties are required to be published in the Official Gazette in order to be enforceable. Jordanian laws are published in the Official Gazette, and access to legislative texts is not difficult. In addition, final judicial decisions issued by the Supreme Court and the High Court of Justice are published in the Jordanian Bar Association Journal, or the Judicial Journal issued by the Judicial Institute. Other judicial decisions are not published; administrative rulings are rarely published. However, administrative rulings are sometimes published when they are challenged in the High Court of Justice, and in such cases, they are published as a court decision rather than as an administrative ruling.10

2.  The judicial system The Jordanian court system is structured into three broad categories:  religious, civil, and Special Courts.11 The civil courts have jurisdiction in all civil matters, including trade. There is a four-​level hierarchy: magistrates’ courts, courts of first instance, courts of appeal, and the Court of Cassation (Supreme Court). The magistrates’ courts are empowered to hear all lesser civil and commercial matters. Their decisions may be appealed to the courts of first instance (which also serve as courts of appeal for magistrates’ court decisions). A decision of the courts of first instance may be appealed to the courts of appeal. At the apex of the judicial hierarchy presides the Court of Cassation. The Court of Cassation decides on challenges to judgments of the courts of appeal in civil cases. It also decides on points of law or procedure, if the reference to the Court of Cassation has been allowed by the presiding judge of the court of appeal. In certain cases, the Court of Cassation can decide to return a case to the court of appeal for reconsideration. Matters of fact relating to litigants’ rights that are not objected to before the court of first instance cannot be raised before the court of appeal, while those not raised before the court of appeal cannot be raised before the Court of Cassation. Decisions of the court of first instance are subject to review by the courts of appeal. However, Jordanian courts can also decide on cases beyond their jurisdiction if the litigants agree. The religious courts are further subdivided into Shari’a courts and tribunals for non-​Muslim religious communities. The Shari’a courts exercise jurisdiction over all matters relating to personal status, such as marriage, divorce, child custody, and inheritance. A special court appointed by the Court of Cassation adjudicates disputes between two religious courts and between a religious and a civil

9 ibid Art 33/​2. 10 Achievement of Market Friendly Initiatives and Results (AMIR), ‘WTO Transparency Requirements and Jordanian Legal Regime’ (USAID Mission to Jordan 2001). 11 1952 Jordanian Constitution, Art 99.

310  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES court. A number of Special Courts have specialized jurisdictions. For instance, the State Security Court, composed of both military and civilian judges, exercises jurisdiction over cases involving allegations of sedition, armed insurrection, financial crimes, drug trafficking, offences against the royal family, crimes involving possession of weapons and explosives, and conspiracy against state security. Other special courts include customs, tax, labour, settlement, municipal, and children’s courts. In 2012, Jordan established a Constitutional Court, which is financially and administratively independent and is in charge of overseeing the constitutionality of laws and interpreting the Constitution.12 The establishment of the Constitutional Court allows individuals and firms to challenge any law that they believe to have affected the rights guaranteed to them under the Constitution.

3. Judicial independence Separation of powers in a country exists if the judiciary exercises its power by an effective check on abuses by the executive branch, and it must be independent of the government. However, judicial independence has two functions: one is to limit governmental power and the other is to protect the rights of individuals. A truly independent judiciary is one that issues decisions and issues judgments that are respected and enforced by the legislative and executive branches; which receives adequate appropriation from the legislature; and which is not compromised by political attempts to undermine its impartiality. Lack of independence is strongly linked to corruption. A judicial system influenced by politics or by other factors is constantly undermined in its integrity and loses its ability to curb corruption, which requires a strong and independent judiciary.13 The Jordanian constitutional system is formally based on the principle of separation of powers. Articles 97 and 101 of the Constitution declare that ‘judges are independent’ and that ‘the courts shall be open to all and free from any interference in their affairs’.14 The constitution vests judicial power in the courts. Trial and adjudication of cases must proceed in accordance with the law and in the name of the King.15 Furthermore, under the Court Establishment Law no 17 of 2001 and Article 3 of the Judicial Independence Law no 29 of 2014, the judiciary is independent. In support of the independence of the courts, the Penal Code of 1960—​under Section IV crimes against judicial administration, and under Chapter I crimes against the

12 Awn Al-​Khasawneh, ‘The Arab Spring and Constitutional Reforms in Jordan’ in Rainer Grote (ed), Constitutionalism, Human Rights, and Islam after the Arab Spring (OUP 2016). 13 Ibrahim FI Shihata, ‘The World Bank and “Governance” Issues in Its Borrowing Members’ in Franziska Tschofen and Antonia R Parra (eds), The World Bank in a Changing World: Selected Essays and Lectures (Martinus Nijhoff 1991) 85. 14 1952 Jordanian Constitution, Art 97. 15 ibid Art 27.

THE IMPACT OF THE CJEU ON JORDAN  311 conduct of justice—​punishes anyone trying to affect the process of adjudication. Additionally, the Penal Code under Article 473 punishes anyone who does not, or refuses to, execute any court decision. The independence of the judicial system in Jordan has, in the past, faced some intervention from the executive power. Intervention by the executive in the judicial system can be seen in a well-​known case of 1998, concerning whether or not the temporary press and publications laws were constitutional. The President of the Court of Cassation, who was also by law the President of the Judicial Council, was removed from his position and then ‘involuntarily retired’ after he ruled that the law was invalid because the government had exceeded its authority in enacting it while Parliament was out of session. Government statements denied that the retirement was a punishment for the ruling, but it was generally regarded as such, and is an example of lack of judicial independence from the executive power.16 Amendments of 2001, 2014, and 2017 to the Independence of the Judiciary Law dealt with issues of the judicial system’s independence that had arisen in the past, by empowering the Higher Judicial Council (which mostly consists of senior judges appointed by the King) with authority regarding removal or transfer of judges and their designation. This authority had previously been vested in the Ministry of Justice. The method of judicial appointment is that of nomination, and no one can be appointed to an initial term as judge unless they have undergone a minimum of one year as a trainee judge or gained a diploma from the Judicial Institute of Jordan. Candidates must also be at least thirty years of age and hold a Bachelor of Law degree, be an ordinary member of the Bar Association, and have at least five years’ work experience.17 Persons who do not hold Jordanian nationality, or those who have been convicted of any criminal offence, or who have been sentenced to any term of imprisonment, are not eligible to be candidates for the position of judge. According to the Judicial Independence Law no 29 of 2014, the Higher Judicial Council comprises a number of judges:  the Chief of the Highest Justice Court (president’s deputy); the Public Prosecution Chief at the Court of Cassation; the two senior judges in the Court of Cassation; chiefs of courts of appeal; senior inspectors of the regular courts of justice; the Ministry’s Secretary-​General; and the Amman First-​Instance Court Chief.18 On 17 October 2014, the Administrative Courts Law no 27 of 2014 came into force. This abolished and replaced the Higher Courts of Justice Law no 12 of 1992, and established a two-​degree adjudication system for administrative disputes. The Jordanian legal system empowers the administrative courts to control the actions of public servants. All administrative decisions, including those issued by

16 Catherine Warrick, ‘Vanishing Victim: Criminal Law and Gender in Jordan’ (2005) 39 Law & Soc’y Rev 213, 340. 17 Judicial Independence Law no 29 of 2014, Art 9. 18 ibid Art 4.

312  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES governmental bodies such as the Trademarks and Patents Office, may be appealed to the administrative court within sixty days from the day of issuance of the appealed decision. Once a court has been petitioned to exercise judicial review over executive acts, it can usually ask for information, monitor developments, demand explanations, and inquire into the validity or authority of acts. The court may also rule that a particular action was unlawful and order a public official to carry out their responsibilities. It is also possible in some cases for the court to award financial damages to a person who has suffered personal injury or economic loss due to government acts. The legal rules that regulate the powers of the court are an important contribution to the accountability of the Jordanian legal system.

4.  Accessibility of the courts According to Article 101 of the Jordanian Constitution of 1952 with Amendments to 2016, Jordanian courts are open to all and free from interference in their affairs. Their sittings are public, unless the court considers that it should sit in closed session, in the interest of public order and morals.19 Furthermore, the Civil Procedure Law no 24 of 1988 sets out the requirements and procedures for filing, hearing, and enforcing lawsuits in civil and commercial matters. It describes the jurisdiction and venue of the courts, and the process for notifying the parties involved in the case. To ease accessibility to the courts in Amman, the Ministry of Justice built the Palace of Justice, which has magistrate’s courts, courts of first instance, the court of appeal, the High Court of Justice, and the Court of Cassation. Previously, courts were spread throughout the capital, and lawyers were compelled to travel from one site to another to check on cases or appear at hearings. The centralization of services at a site accessible to the public and lawyers, and within easy distance of the police services, has been a major improvement to the courts. In addition, there are courts all around Jordan.

5.  A statistical report on the status of the court system Judicial statistics are the basis for any sound court planning and administrative system, as they provide the basic data to support conclusions on present performance and to project future development. An annual report published by the Jordanian Judicial Council shows that the court statistics system in Jordan is divided into summary statistics and case-​tracking statistics.20 Summary statistics are 19 1952 Jordanian Constitution with Amendments to 2016, Art 101. 20 Ministry of Justice of the Hashemite Kingdom of Jordan, ‘Judicial Reports—​Ministry of Justice’ (2019) accessed 6 May 2020.

THE IMPACT OF THE CJEU ON JORDAN  313 those that present aggregate data on the number of cases that have entered the system, the number disposed of, and the number of cases pending. Case-​tracking statistics focus on the progress of individual cases through the system. All courts in Jordan are required to forward monthly case movement statistics to the Ministry of Justice. This data is compiled into tables that show the number of cases filed, resolved, or carried over for the same period. Regular evaluations of the reliability of the statistics forwarded to the Ministry do not appear to take place. This report forms part of a plan to reform the judicial system and complies with the transparency policy that the judicial system has adopted. According to the Annual Report on the Status of the Courts, the Administrative Judiciary, and the Public Prosecution for the Year 2017, the total number of judges in 2017 was 958, of whom 182 were female judges. In addition, the number of cases logged in all courts increased from 455,498 in 2017 to 487,891 lawsuits in 2018.21 Moreover, courts resolved 487,891 cases in 2017 compared to 417, 8337 cases in 2016. This represents an increase of 17% in the number of cases resolved in 2017.22 Publishing statistical reports such as this would help legal researchers and law reform agencies to diagnose accurately the fault lines in the judicial and legal sector. Above all, it would have a positive impact on the level of transparency in the judicial system. However, for the purpose of this research the statistics show that each judge has a heavy case load (with judges able to deal with 635 out of 782 cases each year),23 which could indicate that Jordanian judges do not have time for researching EU laws and CJEU judgments. This could serve as a possible explanation for the lack of CJEU citations in the Jordanian courts’ judgments.

6.  Precedents in the Jordanian legal system Jordan follows the civil law system, in which the role of the judge is limited to applying the law. Therefore, judges are not obliged to base their decisions on previous judicial decisions, even if they are issued by the same court or by a higher court. However, case law does exist in the Jordanian legal system, particularly in commercial matters. Article 3 of the Jordanian Commercial Law allows a judge to be guided by case law in the absence of a legal provision applicable to the dispute before the courts and the judges. However, a review of the case law related to the commercial matter before the judge is not compulsory.24 The judge uses case law as a supplementary source to clarify a legal text or recourse to judicial decisions in the absence of a legal provision in the disputed matter. 21 Jordanian Judicial Council, ‘Annual Report on the Status of the Courts, the Administrative Judiciary and the Public Prosecution for the Year 2017’ (Jordanian Judicial Council 2018) 17. 22 ibid. 23 ibid 39. 24 The total number of judges in 2017 was 958, of whom 182 were female. See ibid 25.

314  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Case law in Jordan can be found in the case laws established by rulings of the Court of Cassation. Several legal precedents have been established under which international treaties were accorded precedence over domestic legislation in Jordan. One of these is the Court of Cassation ruling no 818/​2003 of 9 June 2003, which affirms that international treaties and conventions outweigh local laws and prevail over them should they conflict, and that no domestic law can be invoked against international conventions.25

7.  International judicial cooperation Jordan has signed various multilateral and bilateral agreements related to legal and judicial cooperation. Some worth mentioning are the Riyadh Arab Agreement for Judicial Cooperation, the 1954 Agreement on the Implementation of Provisions between the States of the League of Arab States, the Legal and Judicial Cooperation Agreement between the Arab Cooperation Council, the Judicial Agreement between Jordan and the Arab Republic of Egypt, the Judicial Cooperation Agreement between Jordan and the Syrian Republic, the Judicial Cooperation Agreement between Jordan and the Republic of Yemen, the Legal and Judicial Cooperation Agreement between the United Arab Emirates and Jordan, the Lebanese–​Jordanian Judicial Agreement, and the Judicial Agreement between Tunisia and Jordan. The only channel through which Jordanian judges interact with foreign judges is the Judicial Institute of Jordan. The Institute has entered into a number of agreements and memoranda of understanding in the field of judicial cooperation, provided training, and conducted several workshops with the aim of exchanging judicial knowledge.26 Jordan is also a member of the Euro-​Arab Judicial Training Network, which includes thirteen countries: six European countries—​including the Netherlands, Belgium, Romania, France, Italy, and Spain, as well as seven Arab countries—​including the United Arab Emirates (UAE), Jordan, Algeria, Palestine, Kuwait, Egypt, and Morocco. The Euro-​Arab Judicial Training Network enables institutions that train judges, prosecutors, members of the judiciary, and their associates in member countries to maintain regular contact with each other, and to meet and cooperate in a reciprocal manner to develop joint training programmes and mechanisms. Participant countries in the Euro-​Arab Judicial Training Network discuss ways to strengthen the independence of the judiciary, conduct judicial training, and review judicial issues and their relevance to achieving good governance and judicial mechanisms.

25 See eg Decision no 1477/​2005 of the Jordanian Court of Cassation of 7 September 2005; Decision no 4309/​2003 of 22 April 2004; and Decision no 1824/​2995 of 25 October 2005. 26 Jordanian Judicial Council, ‘Annual Report on Court Rulings for the Year 2016’ (Jordanian Judicial Council 2016).

THE IMPACT OF THE CJEU ON JORDAN  315

8.  Jordan and its relationship with the EU Since the establishment of the European Community in 1952, Europeans have been keen to strengthen their relationships with neighbouring countries. The Barcelona Process in 1995 was intended to advance the EU’s relationships with its neighbours, both politically and economically. The European Neighbourhood Policy (ENP) is the instrument used by the EU in its relationships with neighbouring countries. This includes Jordan, which is considered a frontrunner among the Mediterranean countries in commencing relations with the EU. The EU sees Jordan as a very significant partner and so is devoted to further establishing mutually valuable relationships.27 As a result, the Euro-​Mediterranean Association Agreement was signed on 24 November 1997 between the EU and Jordan, and entered into force on 1 May 2002.28 The main objectives of the Association Agreement are the creation of a free trade area between the EU and Jordan, and the establishment of a comprehensive framework for political, trade, economic, and financial cooperation. The agreement set out: the rules of origin; intellectual, industrial, and commercial property rights—​the agreement requires Jordan to join and adopt major international treaties on protection of intellectual property (IP) rights (such as Paris, Berne, the Agreement on Trade-​Related Aspects of Intellectual Property Rights (TRIPS)); competition policies between Jordan and the EU; and also provisions to pursue economic adjustment, promote the private sector, modernize regulation, and create a friendly investment environment.29 Further, the agreement established a mechanism for cooperation in order to harmonize legislation between the parties to the agreement. For instance, the agreement specified that ‘[t]‌he Parties shall use their best endeavours to approximate their respective laws in order to facilitate the implementation of this Agreement’.30 The Jordanian government has worked closely with the EU to harmonize its law with the EU and international standards, particularly in the following sectors: justice and home affairs, social affairs, energy, tourism, transport, agriculture, cadastre, environmental protection, statistics, security and finance, and trade and industry.31 Jordan and the EU have worked together, particularly at the United Nations, and on regional and bilateral levels to promote stability, moderation, and inter-​faith tolerance in the Middle East.32 Furthermore, recently the EU has come to view 27 European Commission, ‘Report on EU–​Jordan Relations in the Framework of the Revised ENP’ SWD(2017) 234 final (European Commission 2017). 28 ‘Euro-​ Mediterranean Agreement of 15 May 2002 establishing an Association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part’ [2002] OJ L129/​3 (Euro-​Mediterranean Agreement). 29 Ali Kassay, ‘Administration and Efficiency—​Bureaucratic Reform: The Case of Jordan’ (1999) 3 Mediterr Politics 52. 30 Euro-​Mediterranean Agreement, Art 69. 31 European Commission, ‘Twinning, TAIEX and SIGMA within the European Neighbourhood and Partnership Countries 2013 Activity Report’ (2013) accessed 6 May  2020. 32 European Commission, ‘Report on EU–​Jordan Relations’ (n 27).

316  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Jordan as a highly significant partner in controlling the number of Syrian refugees migrating to Europe. The EU supports Jordan in the ongoing Syrian refugee crisis and intends to make it easier for Jordan to export to the EU, encourage investment, and create jobs both for Jordanians and for Syrian refugees.33 The EU has bolstered Jordan in strengthening the rule of law, good governance, and transparency in enhancing the independence of the judicial system. The EU has supported Jordan with the implementation of the Judicial Upgrade Strategy (JUST) (2007–​09), which aims to enhance judicial independence and ensure the competitiveness of the sector based on best international practices.34 According to the European Commission, EU support for the justice sector led to improvements in the organizational structure of the Ministry of Justice.35 Likewise, the courts and the Judicial Institute of Jordan were improved, internal standard operating procedures and guidelines were adopted, and the staff was trained to ensure proper implementation.36 To strengthen their engagement in line with the revised ENP, in December 2016 the EU and Jordan adopted the EU–​Jordan Partnership Priorities and the EU–​ Jordan Compact 2016‒18. The Partnership is based on three themes: strengthening cooperation on regional stability and security; supporting Jordan’s macroeconomic stability, social, and economic development; and promoting good governance, the rule of law, democratic reform, and respect for human rights.37 The EU and Jordan have engaged in strong partnership on justice reform, which forms part of the EU’s financial assistance to Jordan, amounting to between €587 million and €693 million for the years 2014‒20.38

9.  Citation of CJEU decisions by Jordanian judges and legal scholars The author has not been able to find any Jordanian judicial decisions that have been influenced by CJEU judgments. In contrast, the author’s research shows that all

33 Huma Haider, ‘Syrian Refugee Onward Migration from Jordan to Europe’, K4D Helpdesk Research Report (Institute of Development Studies, Brighton 2016); European Union, ‘Countries and Regions:  Jordan’ (2018) accessed 15 December 2018. 34 Jordanian Judicial Authority, The Strategy of Building 2014–​ 2012 (Jordanian Judicial Authority 2012). 35 European Commission, Commission Implementing Decision of 8 December 2017 on the Annual Action Programme 2017 (Part 2) and 2018 (Part 1) in favour of the Hashemite Kingdom of Jordan to be financed from the general budget of the Union C(2017) 8533 final 2017) ANNEX 4, 4. 36 Milena Pirolli, EU and Jordan: Beyond the ENP Action Plan: Did EU–​Jordan Relations Reshape because of the Arab Spring? (Center for Strategic Studies University of Jordan 2013). 37 European Commission, ‘Report on EU–​Jordan Relations (n 27). 38 Delegation of the European Union to Jordan, ‘EU Relations with Jordan’ (12 May 2016) accessed 6 May  2020.

THE IMPACT OF THE CJEU ON JORDAN  317 Jordanian cases that have cited foreign court decisions have referred to those of the Arab courts (such as Egyptian, Syrian, and Lebanese court rulings).39 In addition, some of these decisions referred to Arab legal scholars in their decisions.40 The author has carried out several interviews over the phone and face-​to-​face with Jordanian judges, professors, and lawyers. The judges confirm that they are citing foreign and international law in general and foreign court decisions. However, this is limited to decisions and laws published in Arabic. The interviewees reported that due to the similarity in culture and language, they are more prone to cite Arab court decisions. As foreign language skills are limited, and foreign judgments are not translated into Arabic, access to non-​Arab court decisions becomes problematic for Jordanian judges. This raises the question whether courses in EU law should be offered in Jordanian law schools or other Arab law schools where Jordanian judges and lawyers have been trained. Research found that no Jordanian or Arab university law schools teach EU law in their curricula. The majority of Jordanian judges (95 per cent) are graduates of law schools from Arab countries (which teach law in Arabic only and do not teach EU law at all), and only 2 per cent of them are proficient in English.41 Furthermore, all proceedings in Jordan’s courts are conducted in Arabic. Recently, the Judicial Institute of Jordan has recognized the language barrier issue by running a training programme to promote English language skills.42 Judges of magistrates’ courts, courts of first instance, and courts of appeal do not have legal assistants, although legal assistance is available to judges at the Court of Cassation through the Technical Office.43 The office provides legal, technical, and administrative support to the Court of Cassation, including classification of cases and applications received for distribution to judicial chambers according to their jurisdiction. Its remit is also to provide these chambers with the necessary legislation and precedents related to each case, and any studies and legal research needed.44 However, the legal assistants at the Technical Office do not have any training in EU law, nor do they have the foreign language skills that enable them to provide judges with comparative law from the EU or other non-​Arabic jurisdictions. According to the Jordanian Judicial Council website, the Technical Office of 39 See eg Decision no 2353/​2007 of the Jordanian Court of Cassation of 8 April 2008 (public authority); Decision no 1835/​1999 of the Jordanian Court of Cassation of 31 January 2000 (public authority). 40 Decision no 2353/​2007 (public authority) (n 39). In this case, the Jordanian Court of Cassation referred to scholars of jurisprudence such as Mahmoud Naguib Hosny and Mohamed Zaki Abu Amer. 41 See eg Mashhur Abu Eyd, ‘2% of the Judges are Fluent in English. * Raccad: A Trend to Strengthen the Judiciary with Proficiency in Foreign Languages to Meet the Challenges of Globalization’ (3 June 2007) AL Dustour (Amman 2007). 42 Jordanian Judicial Council (n 21). 43 This was established pursuant to Reg no (7) of 2010, which came into effect on 18 April 2010 and was issued pursuant to Art (12) of the Formal Courts Law no 17 of 2001. 44 The Technical Office of the Court of Cassation issued under Art 12 of the Formation of Formal Courts Law no 17 of 2001.

318  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES the Court of Cassation provides the judges of the Jordanian Court of Cassation with legal precedents derived from Jordan’s Cassation Court and from the Cassation Courts of neighbouring Arab countries.45 This statement on the Judicial Council website indicates that legal assistants at the Jordanian Court of Cassation limit their task to providing judges only with legal precedents from the Arab Courts of Cassation but not comparative law from the EU or other non-​Arabic jurisdictions. The only database of Jordanian cases is run by a private firm called Mizan,46 and no public database is available for recording all the previous court decisions. However, the records which are available from the Mizan database relate to decisions by courts of second instance (the courts of appeal, the Court of Cassation, the Higher Administrative Court). The Mizan database is only available in Arabic. The author used search terms in Arabic such as ‘EU’, ‘European’, and ‘the Court of Justice of the European Union’. The results show only cases involving firms with European names. The search of this database did not show any Jordanian judicial decisions that have cited CJEU cases. However, the search of the Mizan database does list cases that refer to international agreements (eg the Cassation Court Resolution number: 2312/​2014 referring to the Montreal Convention 1999). Furthermore, all of the Mizan database cases that cite non-​Jordanian judicial decisions have referred to Arab court decisions (such as Egyptian, Syrian, and Lebanese court rulings). In addition, the database research results show that in some cases the Jordanian judges refer to Arab legal scholars. The author has searched the website of the Ministry of Industry, Trade and Supply and found that the Industrial Property Protection Directorate do publish their decisions (in Arabic) on their website. The search results show that all the cases cited only Jordanian laws and regulations, and decisions by the Jordanian Administrative Tribunal and the Supreme Administrative Court. The author also contacted by phone the Jordanian Industrial Property Protection Directorate and Competition Directorate, which confirmed that they did not cite the CJEU.

10.  Summary and policy recommendations Jordan is considered to be one of the Mediterranean countries that has worked most closely with the EU, and is a frontrunner in developing a strong relationship with the EU, as evident by cooperation on the Syrian refugee crisis. The EU sees Jordan as a very significant partner and so is devoted to further establishing mutually valuable relationships.

45 Jordan Judicial Council, ‘Technical Office’ (2013) accessed 6 May 2020. 46 See accessed 6 May 2020.

THE IMPACT OF THE CJEU ON JORDAN  319 This chapter has examined the external impact of the CJEU on Jordan judges. The research shows that despite the strong relationship between the EU and Jordan, as outlined in the Euro-​Mediterranean Association Agreement (requiring approximation of laws between the parties) and close judicial cooperation such as the Euro-​Arab Judicial Training Network, CJEU decisions have not influenced Jordanian judges’ decisions. In addition, despite close cooperation with and support by the EU for the Jordanian court system, there is no trace of EU law and CJEU judgments in Jordanian court decisions. This could be due to the fact that CJEU decisions and EU law are not accessible to Jordanian judges or available in their language (Arabic). Another contributing factor is that legal education in Arab countries, including Jordan, is only conducted in the Arabic language; moreover, EU law is not part of the curriculum. The majority of Jordanian judges, lawyers, and professors have graduated from Arab law schools in which education is conducted in Arabic, with no teaching on EU law. This contributes to the lack of citations of CJEU cases and EU law in court cases in Jordan. If Jordan has a keen interest in developing a close relationship with the EU and to Westernize its legal system and economy, it is a real problem that Jordanian lawyers, judges, and law professors are unfamiliar with EU law and CJEU judgments. Thus, EU–​Jordanian judicial dialogue and legal education should be strengthened by teaching EU law in Jordanian law faculties and judicial training centres. In addition, the CJEU should publish its decisions electronically in the Arabic language to make them accessible to Jordanian judges and researchers from the region.

14

The Impact of the Court of Justice of the European Union on Tunisian Judges: Quo Vadis? Béligh Elbalti

A.  Introduction The purpose of this chapter is to examine and analyse the external impact of the Court of Justice of the European Union (CJEU) on Tunisian judges. It shows that the CJEU has, generally speaking, limited influence on Tunisian judges, despite intensive bilateral cooperation between the EU and Tunisia on the one hand, and the openness of Tunisian judges to foreign legal sources and doctrines on the other. This chapter starts by giving a general overview of the basic features of the Tunisian legal system and its judiciary (section B). This section shows that the legal system of post-​independence Tunisia has been largely influenced by the French system, thus making Tunisia a country with aspects of the civil law tradition. Thereafter, the chapter briefly outlines the EU–​Tunisian relationship in general and in the legal field in particular (section C). This section shows that despite intensive cooperation between the two, there is no significant interaction between Tunisian judges and CJEU judges. The chapter continues by describing the research performed and presenting its results (section D). This section shows that Tunisian judges in general manifest little interest in the case law of the CJEU. However, the field of competition law appears to be an important exception to the general tendency observed in Tunisia. In section E, it will also be shown that the influence of CJEU decisions on other governmental branches largely depends on the strength of interaction between Tunisian law and EU law, although the latter may be taken into consideration during preparation of new codifications. Finally, the chapter analyses the results of the research. It is argued that several reasons explain the weak influence of the CJEU on Tunisian judges. It suggests that the hold of French law on the Tunisian legal system and the weakness of comparative research can be regarded as the most important reasons. However, section F points out that in those fields where legal cooperation with the EU is not only fundamental but also required—​as the field of competition law clearly shows—​EU law has succeeded in becoming a major source of influence in that particular field of law. Béligh Elbalti, The Impact of the Court of Justice of the European Union on Tunisian Judges: Quo Vadis? In: The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0014.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  321

B.  Basic Features of the Tunisian Legal System and Its Judiciary 1.  Main features of the Tunisian legal system The Republic of Tunisia is an emerging democracy. The political upheaval, which took place in 2011 with the so-​called ‘Jasmine Revolution’, put an end to more than half a century of totalitarian regime. The first phase of the democratic transition ended successfully in 2014 with the adoption of a new Constitution1 and the organization of national legislative and presidential elections. These elections showed a strong democratic impulse, despite the socio-​economic challenges, the political instability, and the tensions that the country had to face. The ‘unprecedented’ democratic experience2 in Tunisia was widely applauded around the world, notably with the award in 2015 of the Nobel Peace Prize to the main actors, whose contribution to the democratic success story of Tunisia was decisive.3 Major changes brought by the new constitutional order include the following: (i) the change of the political regime from a presidential regime characterized by the predominant role played by the president to a parliamentary regime conferring greater prerogatives and authority on the prime minister and the parliament; (ii) more effective protection of fundamental rights guaranteed by the new Constitution; and (iii) creation of a Constitutional Court with judicial rather than only consultative prerogatives.4 Tunisia developed in its history from a territory inhabited by Berbers to the home of the ancient city of Carthage. Then, Tunisia became one of the important granaries and cities of the Roman Empire and was subject to Roman law over the span of a couple of centuries. The arrival of Arab Muslims in the seventh century brought Tunisia to a new era where the country fell under the dominion of traditional Islamic law. Later, Tunisia became an autonomous monarchy, although it continued to be officially part of the Ottoman Empire before falling under French occupation towards the end of the nineteenth century for seven decades. Upon achieving independence in 1956, Tunisia changed its regime from a monarchy to

1 See the unofficial English translation prepared by the United Nations Development Programme (UNDP) and reviewed International Institute for Democracy and Electoral Assistance (IDEA) accessed 7 May 2020. 2 Terms used in the ‘Joint Statement on the Occasion of the EU–​Tunisia Association Council of 11 May 2017’ (11 May 2017) Press Release 250/​15 www.consilium.europa.eu/​en/​press/​press-​releases/​ 2017/​05/​11/​eu-​tunisia-​association/​ accessed 2 June  2020. 3 See announcement of the Nobel Peace Prize for 2015 which was ‘awarded to the Tunisian National Dialogue Quartet for its decisive contribution to the building of a pluralistic democracy in Tunisia in the wake of the Jasmine Revolution of 2011’ accessed 7 May 2020. 4 See Organic law no 2015-​50 of 3 December 2015 relating to the Constitutional Court, OGRT no 98-​2015, 8 December 2015. However, the Court has yet to be put in place, due to disputes among parliamentary blocs over nomination of its members.

322  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES a republic in 1957. The establishment of a modern state by engaging far-​reaching reforms in all fields of law, including family law, are features that characterize the period following independence.5 The post-​independence state has significantly drawn from the French legal system.6 The influence of French law has been so great that an eminent Tunisian scholar affirmed that Tunisian law was very similar to French law in its content, major divisions, and structure.7 Another eminent author even contended that Tunisian law could not be understood without reference to the concepts and legal categories of French law.8 Nevertheless, with a predominant population of Muslims, Islamic law has continued to be highly influential, particularly in the fields of family law and succession. However, some adaptations of the Islamic heritage were deemed necessary in order to upscale Tunisian society into modernity. Yet, despite what can be considered as ‘political will to break the link between justice and religion’,9 Tunisia has not yet succeeded in fully embracing modernity, leaving a space for traditional Islamic rules and values to govern some aspects of Tunisians’ behaviour.10 The place of Islamic law within the Tunisian legal system, especially in the field of family law and succession, is the object of intense debate between conservatives and liberals. For conservatives, modern Tunisian legislation should be in conformity with Islamic rules and values. They contend that these rules and values form an integral part of the Tunisian genuine identity, especially since the 2014 Constitution states that Islam is the religion of the state.11 For liberals, Islamic rules in contradiction with universal values that have been incorporated in the State’s legislation or reintroduced via case law have no place in the newly established constitutional order. These rules are indeed deemed to be in opposition to democratic values and the principles of equality, non-​discrimination, promotion of women’s rights, and especially the civil status of the state as enshrined in the 2014 Constitution.12 The official position of successive governments has not been clear in this respect. The official discourse insists on the need to embrace modernity while preserving 5 For a brief historical overview in English, see Mustapha Abdesselem and Mohamed Charfi, ‘Tunisia’, in Viktor Knapp (ed.), International Encyclopedia of Comparative Law, vol 1—​National Reports (JCB Mohr 1973) T-​31 et seq, 6; Dan E Stigall, ‘Law and the Lodestar: Tunisian Civil Law and the Task of Ordering Plurality in the Aftermath of the Jasmine Revolution’ (2014) 7(1) J Civ Law Stud 1ff, esp 10ff. 6 On the ‘direct influence’ of French law on the Tunisian legal system, see Yadh Ben Achour, Introduction générale au droit (CPU 2005) 159ff. 7 Mohamed Charfi, Introduction à l’étude du droit no 192 (CERES 2005) 112. 8 Ben Achour (n 6) 162. 9 Salsabil Klibi, ‘Tunisia—​A New Constitution and More Women Judges’ in Gretchen Bauer and Josephine Dawuni (eds), Gender and the Judiciary in Africa: From Obscurity to Parity (Routledge 2015) 80ff, esp 81. 10 cf Stigall (n 5) 3. Some scholars even contend that Islamic law serves as ‘the foundation’ of Tunisian law by ‘inspiring the legislator and guiding the judges in the interpretation of legal rules’. Slaheddine Mellouli, Introduction à l’étude du droit (2nd edn, Latrach Edition 2017) 35. 11 Constitution, Art 1. 12 ibid Art 2.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  323 the Islamic heritage.13 It is true that this has led to adoption of many rules that appear to be in contradiction with traditional Islamic values. However, these ‘innovations’ have always been proclaimed to be in conformity with the ‘spirit (rūḥ)’ and the ‘goals (maqāṣid)’ of Islamic law. In addition, although some modern rules—​such as the prohibition of polygamy and the so-​called traditional ṭalāq-​ divorce—​have been implemented effectively, in many other instances permeable to the influence of Islamic law, the implementation of modern values has not been effectively pursued.14 In some cases, the government itself intervenes at the implementation level to hinder the application of the liberal statutory rules it promoted itself.15 This has introduced within the Tunisian legal system an atmosphere of ambiguity and a sort of schizophrenic manner of dealing with highly sensitive and complicated issues. It has also led to opposing opinions in academic circles as to how to interpret the legislature’s ‘true’ intentions and, more importantly, to contradictions, fluctuations, and unpredictability in court practice to the detriment of litigants’ rights.16 Therefore, it can be said that the Tunisian legal system belongs to the civil law system as developed in France, but with some influence of Islamic law, particularly in the field of family law.17 This does not mean, however, that Islamic law has the status of a formal source of law. In the current Tunisian legal system, statutory law alone remains the primary source of law.18 As such, and unlike many 13 cf Monia Ben Jemia, Souhayma Ben Achour, and Meriem Bellamine, ‘Les incertitudes de la pratique judiciaire du droit de la famille en Tunisie et leurs causes’ in Nathalie Bernard-​Maugiron and Baudouin Dupret, Ordre public et droit musulman de la famille en Europe et en Afrique du nord (Bruylant 2012) 361ff, explaining the complexity of interaction between the modern state and the religious phenomenon. 14 For a general assessment of the Tunisian legal system in light of the new Constitution and human rights conventions ratified by Tunisia, see the Report by the Committee on Individual Freedom and Equality (COLIBE) (in Arabic) accessed 7 May 2020. The report identified existing legal rules—​mainly influenced by Islamic law—​that are incompatible with the new Constitution and international human rights standards and recommended their reform. 15 This was the case, for instance, with a circular in 1973 prohibiting civil status officers and notaries from concluding marriages between Tunisian women, supposedly all Muslim, with foreigners in the absence of submission of a certificate of conversion to Islam by the foreign candidate for marriage, although the Personal Status Code does not refer to disparity of religion as an impediment to marriage. This infamous circular was abolished only in 2017 by the circulaire of the Ministry of Justice no 164 of 8 September 2017. 16 See eg Salma Abida, ‘Les pouvoirs du juge tunisien en droit de la famille’ (‘The Powers of the Tunisian Judge in Family Law’) in Nadjma Yassari (ed), Changing in God’s Law: The Dynamics of Middle Eastern Family Law (Routledge 2015) 153ff. 17 See eg Stigall (n 5) 3, for whom Tunisia is a mixed system of civil law and Islamic law. 18 During debates on the place of Islamic law in the legal order, conservatives tried in vain to include the Islamic Sharia as a primary source of legislation in the Constitution. Their proposition was not accepted by a wide range of political parties and the components of civil society, leading to political instability and acts of terrorism. Finally, a consensus was reached to maintain a provision of the Old Constitution which states that Islam is the state religion. This reference to Islam as the state religion has, as a consequence, perpetuated the old debate on the place of Islamic law and the ambiguity of the modern Tunisian legal system. Indeed, all law reforms proposed in Tunisia to harmonize existing law with the principles and values of equality, freedom, and non-​discrimination have been strongly opposed by the conservative section of Tunisian society and political parties in the name of the reference

324  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES other Arab countries, Islamic law has no direct application in the Tunisian legal system. However, some of its aspects have been incorporated in state legislation, influenced its content, or sometimes been reintroduced through case law by way of interpretation.19

2.  Structure and function of the judiciary Prior to independence, the judicial system was not unified. Religious [Sharia and Rabbinical] courts co-​existed with French courts and the Tunisian secular courts. Upon independence, the judicial system was unified by abolishing the religious and French courts and transferring their competence to the Tunisian secular courts. Later, following the French model, the summa divisio between private and public law became entrenched with creation of the administrative court. Under the current Constitution, the judiciary in Tunisia is classified into four main categories of courts:20 a constitutional court,21 judicial (ordinary) courts,22 administrative courts,23 and financial courts.24 As far as ordinary courts are concerned, these are divided into three different categories:  first-​degree courts (Maḥākim ad-​daraja al-​ʾūlā), second-​degree courts (Maḥākim ad-​daraja ath-​ thāniya), and the Supreme Court called Cour de cassation (Maḥkamat at-​taʿqīb).25 The first-​ degree courts consist of the district courts (Maḥākim an-​nawāḥī), courts of first instance (CFI) (al-​maḥākim al-​ʾibtidāʾiyya), and specialized courts in the Constitution to Islam as the state religion. Recent major developments include a law proposal to reform the Personal Status Code in order to modify the Islamic succession rules in the current law with more equality-​compliant and non-​discriminatory rules. See law proposal no 90/​2018 of 28 November 2018 on completion of the Code of Personal Status accessed 7 May 2020. This proposal, which has faced fierce opposition from the conservative section of society, is currently under standby status and is very unlikely to be adopted, especially after the very recent parliamentary and presidential elections of October 2019. These elections were indeed won by the conservative Islamic party, and a new president, who publicly stated his opinion against establishing equality in matters of succession in the name of traditional Islamic rules and values. 19 In practice, Tunisian courts more often than not refer to Islamic law in order to interpret statutory law provisions, especially in the field of family law, sometimes even against the clear wording of statutory provisions. For an illustrative account, see Sami Bostanji, ‘Turbulences dans l’application judiciaire du Code tunisien du statut personnel:  le conflit de référentiels dans l’œuvre prétorienne’ (2009) 1 RIDC 7ff. 20 See the 2014 Constitution, Ch V entitled ‘The judiciary (as-​sulṭa al-​qaḍāʾiyya)’. 21 Al-​maḥkamat ad-​dustūriyya, ibid Ch V, s II, n 4. 22 Maḥākim al-​qaḍāʾ al-​ʿadlī, ibid Ch V, s I, subs II. 23 Maḥākim al-​qaḍāʾ al-​ʾidārī, ibid Ch V, s I, subs III. The administrative courts consist of administrative courts of first instance, administrative courts of appeal, and an Administrative Supreme Court (ibid Art 116). 24 Al-​qaḍāʾ al-​mālī, ibid Ch V, s I, subs IV. Financial Courts consist of an Audit Court (dāʾirat al-​ muḥāsabāt) and its various bodies (ibid Art 117). 25 In this chapter, ‘Supreme Court’ and ‘cour de cassation’ are used interchangeably to refer to the highest court in the organization of the judicial system of ordinary courts.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  325 (maḥākim mukhtaṣṣa) such as employment tribunals (majālis al-​ʿurf). The second-​ degree courts are in principle the appeal courts (CA) (maḥākim al-​ʾistiʾnāf).26 They primarily hear ordinary appeals against decisions of courts of first instance. Finally, the Cour de cassation, the highest instance of the Tunisian judicial system, hears appeals on points of law against any judicial decision. Its principal mission is to guarantee proper application of the law and to unify its interpretation.27 In addition, a certain number of quasi-​judicial authorities have been created in order to ensure the proper functioning of certain areas of law.28 These authorities are composed of persons specialized in the field of activity of the authority concerned, as well as magistrates either of the judiciary or administrative courts. Therefore, the quasi-​judicial authorities have a hybrid nature of both judicial (that is, dispute-​resolving and/​or sanction-​imposing functions) and consultative and advisory functions. One of the most important authorities, which has developed since its creation into a truly ‘judicial’ entity, is the Competition Council. With regard to its judicial attributes, the Council plays the role of a ‘special court’ with true adjudicatory powers, and whose decisions are subject to appeal before the administrative court. Its mission mainly consists in resolving disputes by rendering judicial decisions on matters that fall under its subject-​matter jurisdiction. With regard to the Council’s consultative and advisory attributes, they mainly consist in providing non-​binding opinions to the government and other stakeholders with respect to competition-​related matters. Opinions are delivered upon requests addressed to the Council.29 Judges30 are the main actors in judicial proceedings.31 Their primary mission is determined by the Constitution itself. It consists in ensuring the administration 26 However, when the case falls under the jurisdiction of the district court, the appeal should be brought before the courts of first instance and not the court of appeal (Code of Civil and Commercial Procedure, Art 40). Courts of first instance can also sit as a court of appeal in other cases where such appeal is permitted. 27 For a general overview, see Charfi (n 7) 178ff. See also Ḥusīn Ben Slīma and ‘Aḥmad Al-​Jandūbī’, uṣūl al-​murāfaʿāt al-​madaniyya wa al-​tijāriyya (‘Fundamentals of Civil and Commercial Procedure’) (3rd edn, Orbis Imp 2011) 37ff. 28 These authorities do not have regulatory prerogatives, but play a consultative role with regard to the government and other stakeholders and an adjudicatory role in the sense that they are empowered to settle disputes in the form of litigation proceedings. These are the Banking Committee (al-​Lajnah al-​Maṣrifiyyah); the Financial Market Council (Hay’at al-​sūq al-​māliyyah); the National Telecommunication Authority (al-​Hay’ah al-​waṭaniyyah lil-​ittiṣālat); the Tunisian Committee of Financial Analyses (al-​lajnah al-​tūnisiyyah li-​taḥālīl al-​māliyyah); the National Authority for Protection of Personal Data (al-​hay’ah al-​waṭaniyyah li-​ḥimāyat al-​mu’tayāt al-​shakhsiyyah); and the Competition Council (majlas al-​munāfasah). 29 For more information on the role of the Competition Council, see Mahar M Dabbah, Competition Law and Policy in the Middle East (CUP 2007) 154ff. 30 According to Tunisian law (Law no 67-​29 of 14 July 1967 on judicial structure, the Superior Judicial Council and the status of judges, Official Gazette no 30 of 14 July 1967, Art 33 as modified by subsequent reforms, Art 12), there are two categories of ‘judges’ (quḍāt): ‘sitting judges’ (al—​quḍāt al-​ jālisīn) and standing judges or prosecutors (ʾaʿḍāʾ an-​niyāba al-​ʿumūmiyya). In their career, judges can evolve from one category of judges to the other. 31 Judges of the Constitutional Court; administrative court judges as well as members of the financial court are subject to different statutory regimes. See law no 2015-​50 of 3 December 2015 concerning

326  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES of justice, the supremacy of the Constitution, the sovereignty of the law, and protection of rights and freedoms.32 Judges are state officials33 appointed by presidential decree based on the assent of the Higher Judicial Council (al-​majlis al-​ʾālī lil qaḍāʾ).34 Tunisian judges are also career judges. Their promotion is subject to requirements regulated by a special statute.35 The 2014 Constitution guarantees their independence. Indeed, any interference of any kind in their function is strictly prohibited.36 In addition, the transfer of judges without their consent, their dismissal from their function, or disciplinary sanctions are not allowed unless otherwise provided by law and maintaining respect for certain safeguards.37 Therefore, as a matter of principle, Tunisian judges are bound only by the law.38 However, these constitutional guarantees have not prevented criticism of the independence of the judiciary, lack of transparency, and corruption. Therefore, calls for reform have frequently been made from within Tunisia and abroad.39 Tunisian judges are in principle recruited from among graduates of the Higher Institute for the Judiciary (al-​maʿhad al-​ʾaʿlā lil qaḍāʾ).40 During their education at the Institute, students are considered as ‘trainee judges’ (‘mulḥaq qaḍāʾī’).41 Admission to the Institute is subject to the condition that candidates pass a national selection exam. Candidates need to be, inter alia, law-​school graduates. Selected students need to follow a two-​year training course, during which they learn about various aspects of applying the law from theoretical and practical perspectives.42

the Constitutional Court; law no 72-​67 of 1 August 1972 on the Functioning of the Administrative Court and the Status of its Members and decree-​law no 70-​6 of 26 September 1970 on the Status of the Financial Court Members. 32 2014 Constitution, Art 102. 33 However, judges are subject to a specific legal regime different from the one that regulates the civil service in general. The status and function of administrative court judges and those of the audit court are governed by different statutes. 34 2014 Constitution, Art 106. The composition and function of the Council are regulated by the Constitution in Arts 112‒114. 35 Law no 67-​29 of 14 July 1967 (n 29) Art 33 as modified by subsequent reforms. An assessment of this law, as well as an unofficial English translation are available accessed 7 May 2020. 36 2014 Constitution, Art 109. 37 ibid Art 107. 38 ibid Art 102. 39 See eg Idrīs Ḥariq, ‘Muqtaraḥāt ḥawl ʾislāḥ al-​manẓūma al-​qaḍāʾiyya al-​tūnūsiyya’ (‘Proposals concerning Reform of the Tunisian Judicial System’) (2018) 254/​255 Infos Juridiques 10ff. 40 Law no 67‒29 (n 35), Art 29. However, professors and lecturers of law, as well as lawyers with ten years’ practice can be appointed as judges (Art 32). 41 ibid Art 29, para 3. 42 However, Tunisian judges are not trained to apply Islamic law. See Maaike Voorhoeve, ‘Judicial Decision in Tunisian Personal Status Law’ in Maaike Voorhoeve (ed), Family Law in Islam (IB Tauris 2012) 209.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  327 Arabic is the official language of the state43 although statutes and other normative texts are published in both Arabic and French.44 Therefore, handling judicial proceedings from hearings, statements of lawyers, and so on should be in Arabic. Evidence to be submitted by the parties should in principle be produced in Arabic.45 Therefore, evidence in foreign languages should be presented along with an Arabic translation.46 Judgments issued by Tunisian judges are written in standard Arabic. In the preparation of their judgments, judges do not have legal assistants to help them with legal research. However, judges can benefit from the services of the Centre for Legal and Judicial Studies (‘markez ad-​dirāsāt al-​qānūniyya wal-​qaḍāʾiyya’), which was created in 1993 in order to promote research in the legal and judicial fields.47

3.  Precedents and legal reasoning As mentioned in section B, Tunisia is a civil law country, and as such the doctrine of precedents that exists in common law countries is not applicable. This means that case law is formally not a source of law, since judges are required to apply the law but not to create it.48 That is why the decisions of the Cour de cassation are in principle not binding on lower courts.49 Judges are not allowed to render judgments in their name or to express their personal opinion in the decisions they render. This explains why dissenting or concurring opinions are not permitted. Indeed, when judges issue a judgment, they have to do it collectively, in the name of the people.50

43 2014 Constitution, Art 1. 44 However, in the case of discrepancy, the Arabic version always prevails. This has been the position of Tunisian case law. See, eg, the decision of the Cour de cassation no 10227 of 3 December 1974, Bull Civ I, 1974, 58 stating as indicated on the basis of an old text of law (decree of 27 January 1897). This position was later confirmed by the Tunisian legislature. See Law no 93-​64 of 6 July 1993 on the publication of legal texts in the Official Gazette and their implementation. 45 However, it was also decided that evidence in foreign languages could be taken into consideration without translation when the evidence is in a language that the court understands. Supreme Court Decision no 6793 of 6 February 2014 (2014) 4 Revue de jurisprudence et de la legislation 106ff; CA Tunis Decision no 48119 of 1 April 2001 (2005) Revue tunisienne de droit 441 (in Arabic). 46 See eg Supreme Court Decisions no 36392 of 12 April 1995 (1995) I Bull Civ 55 and no 3567 of 15 October 2005 (2005) I Bull Pen 117. 47 See accessed 7 May 2020. 48 However, case law is generally considered as a secondary source of law. See Charfi (n 7) 194ff. For a discussion on this issue, see Slaheddine Mallouli, ‘La jurisprudence, source de droit?’ in Mélanges en l’honneur de Mohamed Charfi (CPU 2001) 203ff, who considers that, in practice, case law is ‘certainly a source of law’ (at 227). 49 However, when the decision is rendered in plenary session (ad-​dawāʾir al-​mujtamiʿa) by the Supreme Court, the decision becomes binding on lower courts (Art 191 in fine Code of Civil and Commercial Procedure). 50 Code of Civil and Commercial Procedure, Arts 120, 121, and 189. The judgment will then be executed in the name of the President of the Republic (2014 Constitution, Art 111).

328  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES In applying the law, Tunisian judges are required to give the statutory provisions no meaning other than what results from their grammatical structure, their ordinary meaning, and the intent of the legislature. In the case of lacunae (that is, in the absence of a clear solution to the case), judges need to base their decision on analogy (al-​qiyās) or the so-​called general rules of law (al-​qawāʿid al-​ʿāma lil-​qānūn) in case of doubt.51 However, as in many other civil law countries, this does not mean that case law does not play an important role in clarifying the meaning of the statutory rules, or even in the creation of legal norms.52 In addition, despite the fact that Cour de cassation decisions are not binding, they are usually followed, and sometimes even cited, by lower courts.53 It is even common that the Cour de cassation itself refers to its own case law.54 However, it also happens that the Cour de cassation contradicts itself by rendering completely different decisions on the same issue,55 sometimes even in respect of the same case.56 Moreover, since court decisions, especially those of the Supreme Court, are not published on a regular basis, it happens that lower courts are not aware of some recent developments in the case law of the Supreme Court.57 The Supreme Court itself sometimes gives the impression that its different chambers are not aware of the decisions of other chambers rendered on similar issues.58

51 Code of Obligations and Contracts, Art 535. 52 For instance, in the field of private international law, Tunisian courts have introduced an additional ground for taking international jurisdiction that is not mentioned in the 1998 Code of Private International law (forum necessitatis or jurisdiction based on denial of justice). For a recent application of this doctrine, see Supreme Court Decision no 32561 of 21 September 2009 (2009) I Bull Civ 303ff and no 69462 of 8 May 2019 (unpublished). 53 In fact, reference to case law is not limited to decisions of the Supreme Court only. Tunisian lower courts, be they courts of first instance or courts of appeal, also refer to decisions rendered by other lower courts. 54 See eg Supreme Court Decision no 14220 of 19 October 1985 (1985) I Bull Civ 61. 55 A good illustrative example can be found in the contradictory decisions of the Supreme Court in matters of succession on the issue of disparity of religion as an impediment to succession. Indeed, in a time-​lapse of a couple of months, the Supreme Court ruled that disparity of religion is not an impediment for inter-​faith succession (Supreme Court Decision no 31115 of 5 February 2009 (2009) I Bull Civ 291) but later, it affirmed the exactly opposite solution (Supreme Court Decision no 26950 of 30 June 2009, unpublished). 56 In one case, the Supreme Court, upon a second appeal, declared that natural paternity (affiliation) was not against public policy: Supreme Court Decision no 38151/​37494 of 19 October 2009 (2009) I Bull Civ 317, after stating in the first appeal in the same case that procreation of a child outside of marriage cannot establish paternity to the biological father, even when the latter acknowledges the child as his own. See Supreme Court Decision no 2007-​18400-​18709 of 2 July 2008 (unpublished). 57 cf Maaike Voorhoeve (n 42) 216, stating that family judges of the CFI of Tunis ‘were not aware of certain positions taken by the highest court’. This statement can be generalized to cover other areas of law and to concern Tunisian judges in general. 58 cf Othman Ben Fadhel, ‘Al-​faṣl bayn al-​qānūn al-​waḍʿī wal-​ʾadyān fī masāʾil al-​zawāj wat-​ tawāruth bayn al-​milal (‘Separation between Positive Law and Religions in Matters of Inter-​Religious Marriage and Succession’) (2010) 92/​93 Infos Juridiques 18ff who, commenting on the decisions of the Supreme Court Decision no 31115 (n 55), expressed his surprise at the lack of coordination between the two civil Chambers of the Supreme Court in handling the issue of disparity of religion in inter-​ faith succession.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  329

4.  The influence of foreign and international legal sources and academic legal writings on Tunisian judges Tunisian judges are in principle not prohibited from citing foreign and international legal sources, be they national or international (see section B.4.a below). Tunisian judges may indeed treat those sources as persuasive, but never as normative or binding authority. The same is true with regard to national or foreign academic legal writings (see section B.4.b below).

a. Foreign and international legal sources 1. Foreign case law: Tunisian courts often refer to foreign case law. The lion’s share goes to French case law.59 Interestingly, references to French case law are not limited to decisions by the French Cour de cassation only. It happens that the judges of the Tunisian Supreme Court refer even to decisions by the French lower courts.60 Moreover, references to French case law are not limited to the areas of business law or civil and commercial matters in general, but extend to the field of family law, in spite of the cultural difference between the two countries.61 It also happens—​although very rarely—​that Tunisian courts refer to court practice in countries other than France. This can be illustrated by one reported decision in which the Supreme Court mentioned, without much precision, the practice of the US courts, in addition to the practice of the French courts.62 2. Foreign law: reference to foreign law by Tunisian judges is not uncommon either. Again, the lion’s share goes to French law.63 In several cases, reference has also been made to the law of other Arab countries,64 other 59 See for a case relating to international immunity, Decision of the Tunis CA no 56369 of 28 November 1963 (1964) 4 Revue de la jurisprudence et de la legislation 57, citing decisions by the French Cour de cassation of 3 August 1921 and 2 May 1912; in a case relating to international succession (discussing whether renvoi should be admitted or not), Decision of the Tunisian Cour de cassation no 28151 of 23 March 1993 (1993) Revue tunisienne de droit 409ff esp 419 citing the decision of the French Cour de cassation of 17 November 1964. 60 See eg in a case relating to arbitration, decision by the Tunisian Cour de cassation no 4674 of 18 January 2007 (2007) 32/​33 Infos Juridiques 16 citing two decisions by the Paris CA of 9 June 1983 and 19 June 1993. 61 See eg Decision by the Tunis CA no 10298 of 22 December 1993 (1995) Revue tunisienne de droit 145ff, esp 152, relating to sex change in which the court extensively referred to the development of French case law citing notably the French Cour de cassation’s decisions of 16 December 1975, 4 June 1975, 7 June 1988, and the decision of the Full Panel Court (Chambres réunies) of 11 December 1992. However, the Court of Appeal did not follow the position of the French courts, insisting on different cultural backgrounds between France—​as part of Europe—​and Tunisia. 62 See Supreme Court Decision no 72306 of 14 January 2000 (2000) I Bull Civ 202. However, the court in this case contented itself with a general indication, and did not provide any reference. 63 See eg Decision of the Tunisian Cour de cassation in a case relating to revocation of adoption no 29577 of 23 March 1993 (1993) I Bull Civ 290. 64 See eg in a case relating to international succession (discussing the question of renvoi) Decision of the Mahdia CFI no 5701 of 31 October 1988 (1990) 3 Revue de la jurisprudence et de la legislation 119

330  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES European countries,65 and even Latin America.66 As for European law, in one reported decision by the Supreme Court concerning the law applicable to the termination of an international agency contract in the field of carriage of goods by sea, the court refused to take into account foreign sources, stating that comparative law, international commercial customs, and the 1986 Directive 86/​653 of the Council of the European Communities67 could not be referred to when Tunisian law, as the law of the place of the execution of the contract, applies and where Tunisian local customs provide a solution to the case.68 As will be seen in section D.2 below, the situation is diametrically opposite in the case of law and the opinions of the Competition Council, where EU regulations, directives, and other legal sources are frequently cited.69 3. International instruments:  it also happens that Tunisian courts refer to international instruments. Such a reference can be made to international conventions to which Tunisia is a party, but also to those to which it is not, in the sense that the convention in question is neither signed nor ratified by the Tunisian Government.70 This can also be the case when Tunisia is simply a third party to the convention.71 In matters relating to human rights, Tunisian judges cite not only international conventions binding on citing Egyptian law; Decision of the Mounastir CA no 9324 of 21 November 1996 (unpublished) citing Egyptian, Syrian, Iraqi, and Libyan law. 65 See Decision of the Mounastir CA no 9324 (n 64), citing the then Czechoslovakian law; decision of the Tunisian Cour de cassation no 29577 (n 63) citing German and Swiss law. In a recent decision regarded modification of sex rendered by the Tunis CFI no 12304 of 9 July 2018 (unpublished), the judges mentioned Finnish law. 66 See Tunis CFI no 12304 (n 65), in which the judges also referred to Argentinian law. 67 The court mistakenly cited a directive of 18 September 1986, but did not mention the title of the directive or any other reference that would help to identify the instrument it cited. However, upon investigation, it appeared that the Court was referring to Council Directive 86/​653/​ECC of 18 December 1986 on Coordination of the Laws of the Member States relating to self-​employed Commercial Agents. 68 See Supreme Court Decision no 59252 of 21 January 1998 (1998) II Bull Civ 205. 69 See eg Competition Council Judgment no 121298 of 6 June 2014, MM Health v Johnson & Johnson, in which the Council referred to Directive 76/​768/​EEC of 27 July 1976 on approximation of the laws of the Member States relating to cosmetic products (‘Cosmetic Directive’). See also Competition Council Judgment no 91194 of 18 November 2010, Rizguallah Int’l Marketing v Fittal, in which the Council referred to the position adopted by Directive 2002/​46/​EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements. 70 In one reported case, the Cour de cassation referred to the 1988 UNIDROIT Convention on International Factoring in order to give a legal basis to its solution, although the convention has not yet been ratified by Tunisia: Supreme Court Decision no 49986 of 8 July 2010 (unpublished). On this decision, see Fatma Bouraoui, ‘L’exemple topique de l’application jurisprudentielle d’une convention de droit uniforme non ratifiée par un Etat’ (2014) ULR 365ff. 71 For instance, bilateral conventions between two foreign countries. See eg the Decision of the Mounastir CA no 9324 (n 64) citing by way of analogy the Franco-​Moroccan bilateral convention of 10 August 1981 on judicial assistance in a case relating to international succession.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  331 Tunisia,72 but also other international instruments.73 In another case, the Supreme Court did not hesitate to refer even to model legislation developed by international organizations.74 The legal basis for the courts to refer to these texts is not clear, since the application of these instruments is not binding on Tunisian courts. However, it seems that judges were seeking to lend greater persuasive force to their decisions by invoking these instruments in support of their judgments.

b. Reference to legal academic writings The fact that academic opinion (al-​fiqh)75 is not considered as a source of law in the formal sense has not prevented Tunisian courts from citing—​and even quoting—​ passages from the work of legal scholars. In several cases, Tunisian courts do not precisely refer to scholarly work but content themselves by stating that an opinion is largely shared by legal scholars or that scholars belonging to different schools of thought agree on a certain point, and the like.76 In some cases, Tunisian courts cite authors by name, or even provide a full reference of the cited work, including the publication year and page number. Reference to domestic scholarly writings seems to be natural when the court faces an issue that concerns the application or interpretation of national statutory provisions.77 However, what is interesting is that reference to academic writings can also be made to works by foreign authors. Most of these references 72 In matters of personal status, Tunisian courts often refer to the Convention on the Elimination of All Forms of Discrimination against Women of 1979. For a general overview, see Abida (n 16) 169. 73 In several other cases, Tunisian courts have also referred to the Universal Declaration of Human Rights and the values of freedoms enshrined therein in order to exclude application of the laws of other Arab countries or to refuse enforcement of their judgments. See eg Decisions of the Tunis CFI no 34179 of 27 June 2000 (2002) 1 Revue de la jurisprudence et de la legislation 245 and no 47564 of 1 December 2003 (unpublished). 74 See Tunisian Supreme Court Decision no 7146 of 26 April 2005 (unpublished), in which the court referred to the 1992 United Nations Commission on International Trade Law (UNCITRAL) model law on international credit transfers of 1992. On this decision, see Sami Bostanji, ‘La cour de cassation tunisienne à l’épreuve des « lois politiques’ (2007) 4 RDAI 513ff. 75 The term fiqh here means contemporary academic legal writings, and not the traditional religious jurisprudence. 76 The decisions are too numerous to be cited here. See eg Supreme Court Decisions no 29651 of 18 January 1994 (1994) 7 Revue de la jurisprudence et de la legislation 45 and no 60562 of 26 January 1999 (1999) Revue tunisienne de droit 227; Tunis CFI no 9901 of 13 October 1999 (unpublished). Tunisian courts sometimes make even broader statements by affirming that a specific position is largely shared among scholars within and outside Tunisia. 77 There are many cases in which Tunisian courts at all levels made clear reference to Tunisian legal writings published both in Arabic and French. See eg decision of the Tunis CA no 22715 of 22 February 2006 (unpublished) citing the work of Professor Farhat Horchani on the application of international conventions and the work of Professor Ali Mezghani on the question of fraud as a ground for refusal to enforce foreign judgments. See also Decision of the Cour de cassation no 5418 of 4 January 2007 (unpublished) citing the work of Professor Souhayma Ben Achour on the issue of custody in private international law. The same author was also cited in a Decision of the Tunis CFI no 1962 of 11 April 2011 (unpublished).

332  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES are to French authors,78 although sometimes reference is also made to Arab authors.79

C.  Relations with the European Union 1.  The general framework Tunisia has a longstanding relationship with the EU. This relationship dates back to 1969, with the conclusion of the first Commercial Agreement with the then European Economic Community (EEC). This was followed by the first Cooperation Agreement to be signed by the EEC with a country on the southern shores of the Mediterranean Sea, concluded in 1976. Tunisia was also the first Southern Mediterranean country to sign an Association Agreement with the EU, in 1995. The Association Agreement entered into force in 1998 creating a Free Trade Association between the parties to the Agreement.80 This Agreement constitutes the legal framework for cooperation and partnership between the EU and Tunisia.81 It contains an express conditionality clause relating to respect for human rights and democratic principles, which was considered an ‘essential element of the Agreement’.82 It also includes an approximation-​of-​laws clause, 78 See eg on the question of enforcement of foreign judgments, decision by the Tunis CA no 6494 of 23 June 2004 (2005) Revue tunisienne de droit 429ff esp 435, citing a famous French book on private international law by Henri Batiffol and Paul Lagarde. See also Decision of the Supreme Court no 2830 of 7 December 2006 (2006) I Bull Civ 283 citing the work of French Professor Le Comte de Vareilles-​ Sommière. In another decision, the Supreme Court cites two French authors (Jean-​Paulin Niboyet and Paul Lerebourgs-​Pigeonnière) only by name, but without citing a reference to their work. See Supreme Court Decision no 28151 (n 59). In an old decision, the Tunis CFI cited a book by Professor Henri Batiffol on private international law in a case relating to exclusion of foreign law for being contrary to international public policy. See Decision no 52939 of 7 June 1977 (1978) Part II Revue tunisienne de droit 60. Another example can be found in Decision of the Tunis CA no 10298 (n 61) in which the court cites French author Jean Carbonnier. In the field of international carriage by sea, one Supreme Court decision mentioned René Rodière, Pierre Lureau, Gabriel Marais, and Emmanuel du Pontavice in order to justify the existence of an international custom relating to transportation contracts. See Supreme Court Decision no 72306 (n 62). 79 See eg Decision of the Tunis CFI no 52939 (n 78) citing the work of Libyan (Ali Solayman) and Egyptian (Ezzeddine Abdallah) authors. By the same token, the Supreme Court no 2830 (n 78) cites the opinion of nineteenth-​century Muslim scholar Ibn Al-​Abidin as quoted in the work of Ahmad Al-​Hasri on the definition of the term ‘succession’. Incidentally, it is very common, especially in the field of family law, for Tunisian courts at all levels to refer to traditional Islamic jurisprudence (fiqh), as well as to traditional sources of Islamic law (Qur’an and Sunnah). 80 The text of the Agreement is available at accessed 7 May 2020. 81 For a critical evaluation of the Association Agreement, especially with regard to the issue of boosting the democratic process and improving human rights, see Jinan Limam, ‘L’accord d’association Tunisie-​Union Européenne et le processus démocratic en Tunisie’ in Peter Xuereb (ed), Le dialogue interculturel et la citoyenneté (European Documentation and Research Centre 2004) 285ff. 82 Article 2 reads as follows: ‘Relations between the parties, as well as the provisions of the Agreement itself, shall be based on respect of human rights and democratic principles which guide their domestic and international policies and constitute and essential element of the Agreement.’

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  333 which aims to bring Tunisian law closer to Community law in the areas of law covered by the Agreement.83 The Association Agreement also allowed Tunisia to reinforce its industrial base by engaging in the necessary reforms to meet the requirements of the Agreement. The Association Agreement goes even further by requiring the direct application of Community rules in the field of competition law, including secondary legislation, but only insofar as it affects trade between Tunisia and the EU.84 The Jasmine Revolution of 2011 marked a turning point in relations between Tunisia and the EU. Indeed, the outbreak of the Revolution has been considered an opportunity to consolidate and strengthen the existing relationship between both parties. In 2012, under a newly established Privileged Partnership, Tunisia acquired the status of ‘Privileged Partner’. This was followed by a so-​called ‘Action Plan 2013–​2017’ for implementing the Partnership.85 Since October 2015, Tunisia has been engaged with the EU in so-​called negotiations for a Deep and Comprehensive Free Trade Agreement (DCFTA).86 The announced goal of these negotiations is to create ‘new trade and investment opportunities and ensure better integration of Tunisia’s economy into the EU single market’; they also aim ‘at supporting ongoing economic reforms in Tunisia and at bringing Tunisian legislation closer to that of the EU in trade-​related areas’.87 In this context, the two parties organized several negotiating rounds, with meetings held between 2016 and 2019 during which the parties examined the text of the future DCFTA as proposed by the EU.88 One interesting proposal is the proposed revision of the chapter relating to competition law, which expressly refers to the case law of the CJEU as one of the sources of EU law to be applied in this field.89

83 Article 52 reads as follows: ‘Cooperation shall be aimed at helping Tunisia to bring its legislation closer to that of the Community in the Area of laws covered by this Agreement.’ 84 Article 36(1) declares certain anti-​competitive practices as being incompatible with the proper functioning of the agreement, ‘insofar as they may affect trade between the Community and Tunisia’. According to Art 36(2): Any practices contrary to this Article [Competition] shall be assessed on the basis of criteria arising from the application of the rules of Articles 85, 86 and 92 of the Treaty establishing the European Community and, in the case of products falling within the scope of the European Coal and Steel Community, the rules of Articles 65 and 66 of the Treaty establishing that Community, and the rules relating to state aid, including secondary legislation. 85 See accessed 7 May  2020. 86 See accessed 7 May  2020. 87 ibid. See also accessed 7 May 2020, the Tunisian home page dedicated to those negotiations. 88 See accessed 7 May 2020. 89 Article 1 of the proposed provisions on competition and State Aids, which aims to modify Art 36(2) of the Current Association Agreement (n 84) reads as follows (para 3): Any practice contrary to this Article shall be assessed on the basis of criteria arising from the application of the rules of Articles 101, 102, 106, 107 and 93 of the Treaty on the Functioning of the European Union, including the case law of the Court of Justice of the European Union, as well as secondary legislation [ . . . ]’ [loose translation by the author, emphasis added]. See accessed 7 May  2020.

334  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Within this general context, both parties considered that judicial reforms were necessary. Major action in this respect was the launch in 2012 of a Support Programme for Justice Reform financed by the EU.90 The declared aims of this programme are to reinforce the independence and efficiency of the judiciary, improve access to justice, and modernize the prison system. In this regard, several twinning agreements have been put in place in order, inter alia, to support the training of justice officials by organizing regular practical training.91

2.  Interaction with judges of the CJEU and foreign judges Despite extensive cooperation between the EU and Tunisia, including in the legal field, the author is not aware of any interaction between Tunisian judges and the judges of the CJEU. In order to obtain accurate information on the matter, the author contacted several Tunisian judges or former judges, whose answers were not wholly satisfactory. All that was said was that Tunisian judges often take part in seminars, conferences, and training seminars organized in Europe, without specifically mentioning the CJEU and without further information. With regard to interaction between Tunisian and foreign judges (not necessarily of the CJEU),92 one can mention the existing and longstanding cooperation between the two Cours de cassation in Tunisia and France. This cooperation took new breath with the conclusion of a new Cooperation Agreement between the two Supreme Courts in 2015.93 The Agreement aims to develop exchange programmes between the judges of the two courts and to enhance cooperation by developing an exchange of information and documents in the field of judicial organization, legislation, and case law.94

D.  Citation of CJEU Decisions by Tunisian Judges 1.  Description of the research undertaken a. Sources and major difficulties The research carried out here focuses on decisions by the ordinary courts in Tunisia as described in section B.2 above, as well as decisions of the Competition Council. 90 On this programme, see accessed 7 May 2020. 91 See accessed 7 May 2020. 92 Focus is placed here on interaction with foreign judges in general. Several cooperation programmes with other Arab countries are also operated within the organizational framework of the League of Arab States. 93 Cooperation Agreement between the Cour de cassation of the Republic of Tunisia and the Cour de cassation of the Republic of France signed in Paris on 24 March 2015. The text of the Agreement is available at accessed 7 May 2020. 94 ibid Art 5.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  335 This choice is justified by the availability of these decisions either on internet sources95 or those in possession of the author, such as those published either in Tunisian legal periodicals96 or unpublished decisions collected via the author’s personal network. The author also conducted several interviews either by phone or other telecommunication technologies or via email exchange.97 The research encountered some important difficulties, which certainly impose serious limitations on the findings outlined in this section and which therefore should be highlighted. First, there is no operating database in Tunisia where decisions by Tunisian courts at all levels and of categories can be found. Tunisian court decisions can be found only on very few websites and in very limited numbers. For example, the official website of the Supreme Court, which was recently launched, contains only about 200 decisions of the Supreme Court made between 2017 and 2018. Other websites of certain quasi-​judicial authorities also contain several decisions by these authorities. This is the case with the website of the Competition Council, which contains several decisions rendered between 2001 and 2019.98 The only available database is that operated by the Ministry of Justice,99 which includes some 13,400 Supreme Court decisions in civil and commercial, family, and succession matters, as well as criminal cases.100 However, this database includes only decisions by the Cour de cassation that were published in the Supreme Court Case Report (‘nashriyyat Maḥkamat at-​taʿqīb’) from 1959 to 2008, as well as several non-​published decisions between 2009 and 2013. More importantly, this database cannot be used effectively, as only a pre-​established list of keywords can be used. By entering keywords other than those included in the pre-​established keywords list, such as ‘Europe’ or ‘European’, no decision appears in the result field. Second, court decisions in Tunisia are not regularly published.101 The reason for not publishing court decisions is unclear, but one can assume that this is due to insufficiency of financial and technical support. For this reason, access to court 95 Mainly, the official website of the Ministry of Justice:  accessed 7 May 2020; the official website of the Tunisian Supreme Court:  accessed 7 May 2020; and the official website of the Competition Council:  accessed 7 May 2020. 96 Namely, Revue tunisienne de droit (‘Tunisian Law Review’); Revue de la jurisprudence et de la législation (‘Review of Case Law and Legislation’); and Infos juridiques (‘Legal Information’). 97 The total number of Tunisians working in the legal field (either law professors or lawyers) whom the author could contact either directly or via email was eleven. Six lawyers—​most of them owners of or working for international law firms—​and five university professors specialized in civil law (including family law), private international law, and European law. The total number of judges who responded to the author’s calls and email is only five. Four of them are private law judges and there is only one judge from the Administrative Court. 98 See Table 14.1 below (section D.2). 99 See n 95. 100 All decisions are in Arabic. The number of decisions was counted manually by the author. The number should be used only as indicative, as it is potentially subject to error. 101 The last official publication of the Supreme Court Bulletin was in 2009. However, these decisions have not been included in the database operated by the Ministry of Justice. Certain law reviews continue publishing Tunisian court decisions, but these efforts are clearly insufficient. Another (bad) practice in Tunisia consists of publishing the supposed-​to-​be-​imported part of decisions, but not their full text.

336  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES decisions in Tunisia is indeed a serious issue. Many court decisions (those of either the Supreme Court or the lower courts) that are cited by legal scholars are unpublished102 decisions.103 In addition, court decisions, either published or not, are rarely commented on, and the public is not always aware of their existence.104 It should be said, however, that some initiatives are under way to make court decisions, especially those rendered by the Supreme Court, available for researchers and practitioners. Nonetheless, these efforts remain far from satisfactory as, in the overwhelming majority of cases, only excerpts are published, without giving access to the facts nor the full content of the decisions.105 Finally, conducting interviews was not an easy task, since few actors (law professors, lawyers, and judges) consented to be interviewed.106 Many interview requests either by email or by direct phone call simply remained unanswered. Regardless of these difficulties, the author believes that the results of the research conducted can be relied on at least as indicative of the dynamics underlying the current situation in Tunisia. The findings can, of course, be further developed and enhanced via field investigation and through closer contact with the major actors in the legal field in Tunisia.

b. Approach and methodology For the sake of this research, the first approach by the author consisted in randomly using the abovementioned database (section D.1.a above) operated by the 102 ‘Unpublished’ means that the text of the decision is not available to the public. These decisions may be ‘reported’ in some articles or law reviews (but only partially). In any case, all ‘unpublished’ decisions cited in this chapter are on file with the author, who could get all or a large part of the text using his own personal network. 103 The author usually refers to these decisions as ‘ghost decisions’. This is because one can always come across references to them in the writings of Tunisian scholars, but actually they are not available to the public. This is particularly problematic because once one accesses these decisions, it appears in some cases that what the court is saying is not completely in conformity with analyses by Tunisian scholars. This is because many Tunisian scholars in general are more concerned with praising the openness of the Tunisian legal system and its liberalism than with analysing legal issues taking into consideration the law in force, the actual practice of Tunisian courts, as well as the social reality of Tunisian society. See eg Béligh Elbalti, ‘La validité formelle des mariages traditionnels musulmans conclus à l’étranger en droit international privé tunisien à la lumière du droit comparé’ (2016) 3 RIDC 809ff; Béligh Elbalti, ‘La réciprocité en matière de réception des décisions étrangères en droit international privé tunisien—​ Observations critiques de la décision de la cour d’appel de Tunis no 37565 du 31 janvier 2013’ (2018) 256/​257 Infos Juridiques 20ff and (2018) 258/​259 Infos Juridiques 18ff. 104 For instance, an article recently published by the author on reciprocity in the field of recognition and enforcement of foreign judgments stated that reciprocity in Tunisia had no important role to play. See Béligh Elbalti, ‘Reciprocity and the Recognition and Enforcement of Foreign Judgments—​a Lot of Bark but Not Much Bite’ (2017) 13(1) J Priv Int Law 184ff. However, a few weeks after publication of the article, there came to the author’s knowledge the existence of an unpublished Decision of the Tunis CA rendered in 2013, in which enforcement of a US judgment was refused for lack of reciprocity (see Elbalti, ‘La réciprocité’ (n 103))! This happened despite the fact that in the period between 2013 and 2017, the author went back to Tunisia three times. On each occasion, he contacted many specialists in the field and asked them about the existence of any development in the field of foreign judgments in Tunisia. 105 Usually, the author has to contact one of his acquaintances (often a lawyer) and ask them to find the decision in the court archives, after providing them with the reference (date and number) of the decision in question. 106 See n 97.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  337 Ministry, based on the author’s knowledge and expertise. The author also carried out manual research on available websites and examination of all the judgments in the author’s possession.107 In addition, the author used other materials in his possession: these mainly consist of law reviews108 and books109 accessible to the author. However, since—​as explained in section D.1.a—​there are no operative databases, the author followed a different approach. This consisted in downloading all the judgments available on those websites. Then, the downloaded decisions were grouped year by year into single PDF files. Thereafter, using the text recognition tools in the PDF reader available to the author, a search was also carried out into the PDFs created. A large number of decisions, however, were not suitable for this method. For instance, such a search using text recognition tools could not be carried out with decisions downloaded from the Ministry of Justice website between 1959 and 2005. For those decisions, the author had to go through these cases one by one in order to ascertain their content and to try to find decisions relating to the research created.

2.  Quantitative and qualitative results: presentation As far as CJEU decisions are concerned, and within the limits and difficulties mentioned above, the results can be divided according to the rendering authority. With regard to decisions rendered by the Tunisian ordinary courts, especially those of the Supreme Court, the author did not come across any decision by Tunisian judges citing and/​or referring to the case law of the CJEU. This result suggests, at first sight, that the CJEU has no influence—​or at least no direct influence—​on Tunisian judges, at least as far as private law is concerned.110 This result was confirmed during the author’s discussions with Tunisian judges.111 The majority of the judges expressed their surprise at the idea that reference can be made to the CJEU case law. However, one judge did not firmly exclude the possibility that Tunisian judges might refer to the CJEU when carrying out their preliminary research.

107 Especially a large number of non-​published decisions (about 200 decisions of the lower and Supreme courts rendered between 1980 and 2018)  collected by the author, most of which concern aspects of private international law, family law, and other related fields. 108 Basically, the Revue de la jurisprudence and de la législation (‘Statute and Case Law Review’). 109 Basically, Isam Lahmar, Al-​jadīd fī fqh al-​qaḍāʾ 2017 (‘New Case Law 2017’) (Latrach Edition 2017); Lotfi Chedly and Malek Ghazouani, Majallat al-​ qānū al-​ duwalī al-​ khās muʿallaq ʿalayā [‘Annotated Code of Private International Law’) (Centre des études juridiques et judiciaires 2008) and other annotated codes with case law references (only a brief excerpt is usually included). 110 One would need to examine decisions in the public law area such as those of the administrative court or of other quasi-​judicial authorities which seem to be particularly receptive to European sources due the close relationship between Tunisia and the EU. 111 See n 97.

338  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES The result was different with regard to decisions and opinions112 rendered by the Competition Council and published on its official website. Table 14.1 summarizes these findings:113

Table 14.1  Tunisia: Citation/​decision Year

Opinions

Decisions

Number of opinions

Number of citations

12

0

4

0

2002

12

3/​11

8

0

2003

15

0

11

0

17

3/​12

10

0

2001

2004

Number of decisions

Number of citations

1/​13 2005

11

0

24

0

2006

45

0

23

0

45

1/​14

23

1/​16

2007

4/​15 2008

25

0

21

0

2009

55

0

25

0

2010

56

1/​17 1/​18

27

0

2011

43

0

31

0

2012

40

1/​19

64

Unavailable

2013

36

0

24

0

2014

48

0

40

0

2015

50

0

39

3/​110

2016

37

0

36

0

112 The difference between a decision and an opinion depends on the role played by the Council due to its hybrid nature (n 28). Decisions are rendered by the Council in exercising its judicial attributes. Opinions, on the other hand, are issued by the Council when it plays the role of consultative authority. 113 Several of these decisions have been challenged before the appellate and cassation chambers of the administrative court. In the absence of reliable data, it was not possible for the author to examine how the appealed decisions were treated before the administrative court. However, based on personal communication with a judge of the administrative court (a graduate from a French University), it seems that judges of the administrative court do not cite foreign authorities and sources. The accuracy of this statement needs to be examined though.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  339 Table 14.1  Continued Year

Opinions

Decisions

Number of opinions

Number of citations

Number of decisions

Number of citations

42

1/​111

26

0

2018

30

1/​112

40

0

2019 (up to March)

34

0

19

1/​113

Total: 653

17 citations in 10 opinions

Total: 49514

5 citations in 3 decisions

2017

Source: Author’s own research from access to the Competition Council’s official website. 1 Opinion 2267 of 12 December 2002 upon a request by the Minister of Tourism no 1578 of 28 October 2002 concerning agreements made by insurance companies on pricing voluntary insurance for owners of motor cars. Cited decisions: (1) Case C-​45/​48 Verband der Sachversicherer eV v Commission of the European Communities CJEU judgment of 27 January 1987, ECR 405; (2) Cases C-​159/​91 and C-​160/​ 91 Poucet and Pistre/​AGF and Cancava CJEU judgment of 17 February 1993, ECR I-​637 (SVXIV/​I-​27 FIXIV/​I-​27) (ECLI:EU:C:1993:63); (3) Case C-​238/​94 Garcia CJEU judgment of 26 March 1996, ECR I-​1673 (ECLI:EU:C:1996:132). 2 Opinion 4293 of 10 June 2004 upon a request by the Minister of Commerce of 19 May 2004 concerning the exclusive rights of owners of public telephone services to sell prepaid telephone cards. Cited decisions: (1) Case C-​369/​88 Criminal proceedings against Jean-​Marie Delattre CJEU judgment of 21 March 1991, ECR I-​1487; (2) Case C-​60/​89 Criminal Proceedings against Jean Morteil and Daniel Samanni CJEU judgment of 21 March 1991, ECR I-​1547; (3) Case C-​271/​92 Laboratoire de prothèses oculaires/​Union nationale des syndicats d’opticiens de France CJEU judgment of 25 May 1993, ECR I-​2899 (ECLI:EU:C:1993:214). 3 Opinion 4299 of 30 December 2004 upon a request by the Minister of Commerce and Handicraft concerning liberalization of prices and the margin of commercial profit in vegetables, fruit, chicken and their products. Cited decision: Joined cases C-​319/​93, C-​40/​94, and C-​224/​94 Dijkstra/​Friesland (Frico Domo) Coöperatie CJEU judgment of 12 December 1995, ECR I-​4471 (ECLI:EU:C:1995:433). 4 Opinion 62160 of 1 February 2007 upon a request by the Ministry of Commerce and Handicrafts of 30 November 2006 concerning the grant of a collective exemption under Art 6 of the Competition law to franchise contracts. Cited decision: Case C-​161/​84 Pronuptia de Paris GmbH v Pronuptia de Paris Irmgard Schillgallis CJEU judgment of 28 January 1986, ECR 00353 (Pronuptia). 5 Opinion 72166 of 1 March 2007 upon a request by the Minister of Commerce and Handicrafts no 743 of 18 January 2007 concerning the opinion of the Council on a draft relating to modification of Law no 36 of 1994 of 24 February 1994 relating to Literary and Artistic Property. Cited decisions: (1) Case C-​238/​87 Volvo v Veng CJEU judgment of 5 October 1988, ECR 6211; (2) Case C-​53/​87 Circa v Renault CJEU judgment of 5 October 1988 , ECR 6039; (3) Case C-​418/​01 IMS Health GmbH & Co OHG v NDC Health GmbH & Co KG CJEU judgment of 29 April 2004, ECR I-​5039; (4) Joined cases C-​241/​91 P and C-​242/​91 RTE and ITP/​Commission CJEU judgment of 6 April 1995, ECR I-​743 (ECLI:EU:C:1995:98). 6 Decision 61107 Ste Gabesienne D’Emballage ‘SOGEMBAL’ v Société Tunisienne des Industries du Papier ‘SOTIPAPIER’ and others of 1 November 2007 citing CJEU decision of 30 September 2003 requiring companies having a dominant position in the market to grant a price reduction to clients (the reference of the decision was not mentioned). 7 Opinion 92304 of 20 May 2010 upon a request by the Minister of Commerce and Handicrafts no 9169 of 12 October 2009 concerning the planned merger of two Tunisian food production companies. Cited decisions: Case C-​6-​72 Europemballage Corporation and Continental Can Company Inc v Commission of the European Communities CJEU judgment of 21 February 1973 ECR 00215. In this opinion, the Council also cited the decision of European Court of First Instance:  Case T-​119/​02 Royal Philips Electronics NV v Commission of the European Communities ECFI judgment of 3 April 2003 II-​01433 and Case T-​114/​02 BaByliss SA v Commission of the European Communities [2003] II-​01279.

Continued

340  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Table 14.1  Continued 8 Opinion 102334 of 28 October 2010 upon a request by the Minister of Commerce and Handicrafts no

4253 of 15 April 2010 relating to agreements between some TV channels with sports clubs concerning those clubs’ activities. Cited decision: Case C-​262/​81 Coditel v Ciné-​Vog CJEU judgment of 6 October 1982, ECR 3381 (Coditel II). 9 Opinion 112431 of 9 February 2012 upon a request by the Minister of Tourism no 26 of 27 October 2011 relating to authorization to use foreign trademarks in a franchise contract in the field of advertising services. Cited decision: CJEU judgment in Pronuptia (n 4). 10 Decision of the National Competition Council 121306 of 25 December 2015 Minister of Commerce v Chamber Union of Issuers of Restauration and Services Titles and others. Cited decisions: (1) Joined cases C-​89/​85, C-​104/​85, C-​114/​85, C-​116/​85, C-​117/​85, and C-​125/​85–​C-​129/​85 A Ahlström Osakeyhtiö v Commission of the European Communities CJEU judgment of 31 March 1993, ECR. I-​1307; (2) Joined cases C-​204/​00 P, C-​205/​00 P, C-​211/​00 P, C-​213/​00 P, C-​217/​00 P, and C-​219/​00 P Aalborg Portland v Commission of the European Communities CJEU judgment of 7 January 2004, ECR I-​00123; (3) Case C-​395/​96 P Compagnie maritime belge v Commission CJEU judgment of 16 March 2000, ECR I-​1365. In the same decision, the Council also cited two decisions of the European Court of First Instance: (1) Case T-​228/​97 Irish Sugar/​Commission ECFI judgment of 7 October 1999, Rec II-​2969; and (2) Case T-​464/​04 Independent Music Publishers and Labels Association (Impala, association internationale) v Commission of the European Communities judgment of 13 July 2006, ECR II-​2289. 11 Opinion 162623 of 26 January 2017 upon a request by the Minister of Commerce of 18 November 2016 concerning a project for an economic concentration in the field of galvanizing and transforming metals. Cited decisions: Joined cases C-​68/​94 and C-​30/​95 France and Société commerciale des potasses et de l’azote and Entreprise minière et chimique v Commission CJEU judgment of 31 March 1998, Rec [1998] ECR I-​1375. 12 Opinion 182665 of 4 May 2018 upon a request by the Minister of Commerce of 6 February 2018 concerning a franchise agreement in the field of advertising on the back of register receipts. Cited decision: CJEU judgment in Pronuptia (n 4). 13 Decision 161420 of 10 January 2019 Moualdiyya Albahri v Sté Tunisie Télécom. In this case, the reference to CJEU case law was not to a specific decision, but concerned the definition of ‘economic enterprises’ in competition law. However, the reference was made in the end-​of-​investigation report drawn by the rapporteur and the Council contented itself by reiterating the position of the rapporteur in mentioning the CJEU. 14 Decisions of 2012 were not available to the author and therefore not included in counting the total number of cases. Information on the number of cases is found in the explanatory part of the 2012 annual report.

As Table 14.1 clearly shows, the Competition Council, as a judicial authority, cited five decisions by the CJEU in three cases. The first case, decided in 2007, concerned a claim brought by a company specialized in manufacturing and marketing of packaging bags against another company with a dominant position in the local market for paper and cardboard. The issue was to establish whether the respondent company had abused its dominant position by adopting a discriminatory policy by granting differentiated price reductions to its various customers, which allegedly impacted negatively on the production of Kraft bags and the competitive capacity of the claimant. The Council referred to EU case law, which acknowledges the right of dominant companies to grant price reductions to their customers when such reductions reflect the profit gained from those companies. The second case, decided in 2015, concerned an action brought by the Ministry of Commerce against the issuers of ticket-​restaurant meal vouchers to several companies. The question was to find out whether the respondents were engaged in anti-​competitive behaviour by constituting a collective

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  341 dominance prohibited by law.114 Although in this case the Council abundantly cited the case law of the French Competition Council, it was able to refer also to the case law of the CJEU, as if it wanted to lend more persuasive effect to its analysis. The third case, decided in 2019, concerns an action brought by the owner of a small business relating to telecommunication services against one of the major telecom operators claiming that the losses incurred by the claimant and decline in her turnover were due to anti-​competitive practices by the respondent. One of the questions raised was whether the applicant had the standing to bring a claim before the Council as an ‘economic enterprise’.115 In the investigation report, the Council’s rapporteur referred to the CJEU definition of economic units from the point of view of competition law, concluding in favour of the applicant. The position of the rapporteur was contested by the respondent, arguing for a legal definition of ‘economic enterprises’. Without directly citing the case law of the CJEU, the Competition Council simply accepted the views of the rapporteur by ruling in favour of the applicant. On the other hand, in its consultative role, the Council seems to be more willing to cite CJEU case law. As Table 14.1 clearly shows, the Council referred seventeen times to CJEU case law in ten opinions. These opinions were issued at the request of the competent authority with regard to issues relating to regulation of competition law in Tunisia or the potential impact of certain practices or agreements on the Tunisian market. The Council’s role was to determine whether or not the object of the requests was in conformity with legislation in force. The difference observed between citation of EU case law in opinions and decisions can be explained by the fact that the Council is more bound by the claims of the parties when it exercises its judicial prerogatives. However, in issuing opinions, the Council has more freedom, as its role is to provide guidelines to the Tunisian regulatory authorities concerning their intervention in the field of competition law. In this respect, the intention of the Council to align Tunisian law with EU law is clear, and the reference to CJEU case law seems to be a natural consequence of this endeavour.

E.  CJEU Influence on Other Branches of Government and on Legislation Generally speaking, it is not clear whether the CJEU has any influence on the different branches of government, despite the fact that the approximation-​of-​laws

114 Law no 2015-​36 of 15 September 2015, Art 5 on reorganizing competition and prices, available in English accessed 7 May 2020. 115 According to Law No 2015-​36, ibid Art 15, only a limited number of parties are allowed to seize the Council with claims on anti-​competitive practices. These are: (i) the Minister in charge of trade or any individual with proper delegated authority for this purpose; (ii) economic enterprises; (iii) professional and trade union organizations; (iv) legally established consumer organizations; (v) chambers of commerce and industry; (vi) regulatory authorities; and (vii) local collectivities.

342  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES process is an important element of the cooperation between the EU and Tunisia. However, it is possible that EU law in general and decisions of the CJEU in particular penetrate the Tunisian legal order through academic writings.116 For example, in the field of private international law, Tunisian scholars often refer in their work to various EU sources.117 Yet it should be mentioned that, in several discussions organized with practitioners in various fields of law,118 the impression that the author got was that some of these practitioners were not aware of developments under EU law. Others even expressed surprise at the idea that EU law should be a source or a reference for them. According to these practitioners, EU construction is so unique because the EU pursues regional integration purposes that are not necessarily well adapted to the Tunisian context.119 However, in fields that are directly concerned with EU–​Tunisian cooperation, the influence of EU law and CJEU case law is more palpable. The field of competition law is illustrative. Indeed, as Table 14.1 clearly shows, the Competition Council often refers to CJEU case law in responding to consultation requests by the Tunisian regulatory authorities in the preparation of regulatory rules. In addition, the reading of cases shows that reference to EU law is not limited to the case law of the CJEU, but also includes—​and more often—​EU regulations, directives, and decisions of the European Commission.120

F.  Analysis and Possible Explanations for the Results As demonstrated in section E above, Tunisian ordinary court judges show little interest in CJEU case law, whereas the judges of the Competition Council are much more influenced thereby. How can this be explained? As far as the Competition Council judges are concerned, their readiness to cite CJEU case law is rather easily understandable. The Association Agreement signed 116 It should be mentioned that although academic opinion in Tunisia has little influence on case law (except where the judges rendering decisions adhere to ideas as developed by Tunisian authors), it can be highly influential on the Tunisian law maker. This is because Tunisian scholars, who are generally highly critical of Tunisian judges, are often appointed by the Government to conduct legal research and prepare the first drafts of law proposals; cf Imen Gallala-​Arndt, ‘Tunisia’ in Jürgen Basedow and others (eds), Encyclopedia of Private International Law, vol III (Elgar 2017) 2581ff, esp 2583. 117 During the codification process of Tunisian private international law (promulgated in 1998), the Tunisian expert group who worked on the project referred, inter alia, to the 1968 Brussels Convention on international jurisdiction and foreign judgments (later replaced by the Brussels I Regulation, as recently reformed by the Brussels I bis Regulation). Several provisions of the 1998 codification seem to be influenced by the Convention. See Mabrūk Ben Mūssā, Charḥ al-​majalla at-​tūnisiyya lil-​qānūn al-​dūwalī al-​khaṣ (‘Commentaries on the Tunisian Code of Private International Law') (Dar Al-​Mizan 2003). 118 See n 97. 119 This statement is based on private discussions and correspondence with some Tunisian judges and practitioners. It is not clear, however, to what extent this view is shared by the legal community in Tunisia, since many of them are either trained in European universities or are graduates of the EU law master programme course provided by the Faculté des Sciences Juridiques, Politiques et Sociales de Tunis. 120 See n 69.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  343 with the EU, as well as other intensive cooperative frameworks, are essential factors not only in bringing Tunisian competition law closer to EU standards, but also in inciting the judges of the Council to look into CJEU case law.121 As for Tunisian ordinary court judges, the lack of influence can be explained differently, but several possible explanations should be excluded from the outset. First of all, the explanation that lies in a sort of language barrier or difference in educational background does not seem to be relevant for the case of Tunisia. Indeed, the strong influence of French law on the Tunisian legal system and the availability of CJEU decisions as well as their comments in French mean that Tunisian judges do have access to this case law. This is true especially when considering that those decisions and case notes are published in French law journals and reviews which are known to be available in Tunisian law libraries. The same can be said with regard to the cultural explanation, although the difference in cultural background may explain the reluctance of Tunisian judges to refer to CJEU decisions in sensitive fields such as family law.122 However, with respect to other fields of law, that cultural barrier is almost non-​existent, as modern Tunisian law is heavily influenced by French law as noted in section B.1 above. The ideological argument—​that is, reluctance to cite CJEU decisions due to the difference in values that are at the foundation of the EU legal system—​is even less convincing. Apart from the field of family law, where the influence of Islamic values is still relevant, there seems to be no substantial difference between the values promoted by the EU and the core values enshrined in the post-​ revolutionary Tunisian Constitution. Indeed, in many public statements, EU high officials have emphasized the similarity of fundamental values proclaimed by the Tunisian 2014 Constitution and the European Charter of Human Rights, namely, respect for human rights, democracy, and social justice. Moreover, Tunisian judges are open to foreign legal sources (statutes or case law) and foreign scholarly opinions.123 In the author’s opinion, several factors can explain the reluctance of Tunisian judges to refer to CJEU decisions, despite their readiness to cite foreign legal sources. The first relates to the strong influence of French law on the Tunisian legal system. This influence manifests itself in the training of students, the work of 121 See section C.1 above. 122 In one decision by the Tunis CA, it was stated that the solution of the French Cour de cassation in matters relating to sex change could not be followed. The main justification was differences in culture and civilization since, according to the court, European judges are bound by a civilizational and cultural heritage that is different from that of Muslim Arab judges. See Decision of the Tunis CA no 10298 (n 61). See contra the Decision of the Tunisian Cour de cassation no 29577 (n 63), in which the court, in a case relating to revocation of adoption, emphasized the similarity between French law (and the law of other European countries, namely, Germany and Switzerland) and Tunisian law. Although these cited decisions do not refer to CJEU judgments, they show tendencies in Tunisian court practice with regard to references to the case law of some European countries, notably France, in the field of family law. 123 See section B.4 above.

344  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Tunisian scholars, and the workings of the legal system in general.124 As mentioned in section B above, most of the references to foreign legal sources are to French law, French case law, or French legal writings. This can be explained by the structure of legal education in Tunisia, where French law is introduced to law students from their first year of training. France is also by far the first destination of law students who wish to pursue their legal education abroad.125 Many of them later become lawyers or faculty members and therefore continue to maintain the status quo of the dominion of French law in Tunisia. The weakness of comparative research in Tunisia and insufficiency of national legal materials, especially the publication of court decisions and case notes, can be another reason that may explain this situation.126 As a result, Tunisian scholars turn to French legal sources, where they can find what they need for their research. This attitude seems to be natural, in the knowledge that many legal texts are simply taken from or modelled on the basis of French law. The reader of work by Tunisian scholars will quickly notice the abundance of references to French sources, sometimes even to the detriment of Tunisian sources. Indeed, more often than not Tunisian scholars interpret Tunisian positive law by citing French law and case law as if these sources have legal force in Tunisia.127 This tendency can be also seen in some court decisions, where reference to French law is frequently made.128 Even in the legislative process, it is very common that the expert group nominated by the government to prepare law proposals undertakes its work on the basis of French legal sources. It is even very common that a draft law is first prepared in French, and only after that translated into Arabic.129 This often leads to problems of interpretation, and therefore the need to refer to French law in order to better understand the purpose and intention behind the rule in question becomes vital.130 In addition, and most importantly, Tunisian judges refer to or cite foreign sources when invited to do so by lawyers representing the parties. This means that 124 See Ben Achour (n 6) 159: ‘L’édition, l’enseignement et le milieu judiciaire ont été les trois canaux de transmission de la culture juridique française en Tunisie’ (‘The publishing, education and judicial community have been the three channels of transmission of French legal culture in Tunisia’). 125 The author does not have any statistics to confirm this statement. However, this is a general sentiment that is confirmed by the author’s personal experience. 126 cf Lotfi Chedly and Béligh Elbalti, ‘Treatment of Foreign Law in Tunisia’ in Yuko Nishitani (ed), Treatment of Foreign Law—​Dynamics towards Convergence? (Springer 2017) 583ff, esp 600. 127 See eg Sami Bostanji, ‘De la promotion des usages du commerce international par la justice étatique (A propos de l’affaire Interco c/​North African International Bank)’ (2005) 132(4) Clunet 1067ff, in which references to Tunisian legal writings and court decisions are utterly insignificant compared to the abundance of references to French case law and legal writing, even though the author was commenting on a decision by a Tunisian court. 128 For instance, one author commenting on the decision of the Tunis CA no 10298 (n 61) (Rachida Jlassi Jabli in (1995) Revue tunisienne de droit 153ff, esp 174) expressed surprise, qualifying as ‘strange’ the fact that the court relied on several decisions of the French Cour de cassation as if rendered by the Tunisian Cour de cassation. 129 See Ben Achour (n 6) 163, who explains that, in theory, the French version of Tunisian statutory law is just a translation, but in fact, it is the original text. 130 ibid 162.

THE IMPACT OF THE CJEU ON TUNISIAN JUDGES  345 the ‘open’ attitude of Tunisian judges to foreign sources is not necessarily due to activism by Tunisian judges, but finds its explanation in the role of the parties in the proceedings. In fact, it is usually the parties who base their arguments on foreign sources as detailed in section B.4. Tunisian courts more often than not content themselves by reproducing these arguments in their judgments either by adopting them for their account or by rejecting them. However, Tunisian lawyers, when pleading their cases, usually prefer French legal sources.131 As mentioned above, since the training and education of Tunisian students at Tunisian law faculties are strongly influenced by French law, it seems natural that they put into practice what they learned when they become lawyers and practitioners. Finally, another possible explanation can be found in the general state of mind of the actors in legal circles in Tunisia. Indeed, there seems to be a general opinion among Tunisian legal actors that EU law serves purposes different from those pursued by Tunisian law; that is, the construction of an internal market and the unification of law for that purpose.132 The validity of this argument can be strengthened by examining Tunisian court decisions which refer to international instruments on human rights. Indeed, Tunisian judges and scholars refer more to UN Conventions and the Declaration of Human rights than to EU law, the case law of the CJEU, or even the case law of the European Court of Human Rights (ECtHR).133 This can be explained by the general feeling that European instruments have more regional rather than universal values and especially are more adapted to the European secular reality than to the Tunisian reality, where strict separation between religion and the state is not completely entrenched.

G. Concluding Remarks The question whether decisions of the CJEU influence Tunisian national judges is very difficult to answer in general terms. The geographical proximity of Tunisia and the established partnership with the EU—​which requires a certain level of approximation of Tunisian law with EU law, or even direct application of EU primary and secondary sources according to the Association Agreement signed in

131 For a concrete example, see the decision of the Tunis CA no 10298 (n 61). See also the decision of the Cour de Cassation no 59252 (n 68). 132 This statement is based on some correspondence with Tunisian judges and lawyers. 133 In one decision by the Tunis CA, the court—​after discussing the evolution of case law in France from prohibiting sex change to its acceptance—​stated that this evolution was ‘not based on any convincing scientific or legal reasoning, but it is a solution [that the French Cour de cassation] was obliged to adopt in application of the European Convention of Human Rights’. See the decision of the Tunis CA no 10298 (n 61). However, in a recent decision concerning a similar issue (see Case no 12304 (n 65)), the Tunis CFI cited two decisions by the ECHR (Christian Goodwin v United Kingdom of 11 July 2002 and B v France of 25 March 1992) as an argument in favour of considering sexual identity as an aspect of human rights.

346  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES 1995—​militate for an affirmative answer. Interestingly, the author has not come across any decision in which Tunisian judges of ordinary courts cite CJEU case law, although there are abundant court decisions in which Tunisian courts did refer to foreign sources, especially French ones. In this regard, it is important again to highlight the important role of the parties in bringing foreign references (law, case law, academic opinions, international instruments) before Tunisian courts. The decisions examined by the author show that Tunisian ordinary courts do not voluntarily look for solutions in foreign experience. It is, in fact, the parties who invite the judges to examine these references in the hope of lending more persuasive value to their arguments by pointing out general tendencies in foreign countries. One might easily assume that if Tunisian lawyers invite the courts to examine decisions rendered by the CJEU, Tunisian judges would have no difficulty in mentioning these references in their judgments if they considered them convincing and persuasive. Does this mean that cases in which the CJEU is referred to do not exist in the case law of Tunisian ordinary courts? Although it is difficult to show that something is non-​existent, an affirmative answer would be misleading due to the non-​ publication of Tunisian court decisions.134 We should not be surprised to ‘discover’ somewhere in the court archives the existence of several court decisions in which the CJEU is cited,135 but this would necessitate meticulous investigation of those archives. The practice of judges of the Competition Council reinforces this feeling, since the case law and opinions issued by Council clearly show the existence of a certain influence by the CJEU on Tunisian judges. In any case, despite the absence of concrete evidence on the ‘direct’ influence of CJEU decisions on Tunisian ordinary court judges, one cannot help thinking that such influence would operate indirectly. Indeed, the Europeanization of law in the EU Member States, especially in France, could be the Trojan horse for the penetration of CJEU influence in Tunisia. So far, the author has not found concrete evidence of this indirect influence by the CJEU on Tunisian judges. However, one can assume that recent developments in the French legal system under the influence of EU regulations, directives, and decisions by the CJEU would certainly have an impact on the Tunisian legal order.

134 See section D.1.a above and the references cited therein (especially n 104, which is based on the personal experience of the author). 135 Indeed, the author would not have known about the existence of Tunisian court decisions citing the case law of the ECHR had he not obtained the text of an unpublished decision of the Tunis CFI rendered recently (n 133).

15

The Impact of the Court of Justice of the European Union on Neighbouring Countries Summary and Analysis of Findings Arie Reich and Hans-​W. Micklitz

A.  Introduction The aim of this concluding chapter is to summarize the findings of the whole project, and in particular the reports from the eleven jurisdictions1 covered by the research. The overall objective is to try to formulate general conclusions about the extent of the external impact of the Court of Justice of the European Union (CJEU) on the European neighbourhood, and the dynamics of that influence. With that in mind we have chosen a three-​pronged approach, each prong of which is dealt with in a separate section: section B looks at the relative quantity and the impact of CJEU citations in these jurisdictions; section C summarizes the findings—​not through a country-​by-​country analysis (as in section B), but through a factor-​by-​ factor analysis; and Section D tries to place the current project into the context of overall research on the global reach of EU law and points to areas where further research is needed. Finally, section E concludes with some general observations and thoughts and formulates possible policy recommendations based on our findings. Section B breaks down the eleven jurisdictions into three groups based on the relative quantity and impact of CJEU citations found in these jurisdictions. By drawing conclusions from all the country reports through a comparative and macro-​perspective, the goal of the chapter is to distil the insights of the entire project and formulate policy recommendations in the light of EU external policy and legal integration objectives vis-​à-​vis its neighbourhood. The study also sheds light on the dynamics of the use of comparative law and foreign judgments by courts in different jurisdictions, and the relative impact thereof. It discusses the 1 We use the term ‘jurisdictions’, as opposed to ‘countries’, whenever the group of jurisdictions we refer to include the Eurasian Economic Union, and the chapter devoted to it, considering that this union is, of course, not a country. Arie Reich and Hans-W. Micklitz, The Impact of the Court of Justice of the European Union on Neighbouring Countries In:  The Impact of the European Court of Justice on Neighbouring Countries. Edited by: Arie Reich and Hans-W. Micklitz, Oxford University Press (2020). © The Several Contributors. DOI: 10.1093/oso/9780198855934.003.0015.

350  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES circumstances of each jurisdiction and the factors that lie behind the high or low CJEU impact in each jurisdiction. This approach necessarily includes a comparative dimension. We are fully aware of the intricacies that such an exercise entails, both conceptually and theoretically. The eleven jurisdictions, the ten countries, and the one transnational organization cover a broad range of extremely heterogeneous legal orders. The Mediterranean and Eastern European legal orders enshrine large parts of European history, of colonial and post-​colonial times, and of the legacy the colonial powers have left to the countries under investigation. They cover countries with a predominant common law, with a predominant French law, and also with a predominant German law. It would be a research project in itself to investigate more deeply the legal mix and the historical roots, not forgetting the influence of the Soviet Union and later of the EU. Our aim is more modest, but ambitious enough. We intend to summarize the findings of the eleven jurisdictions first and foremost with regard to the degree of impact the CJEU wields. That is why the exercise undertaken could by and large be associated with what has been called a comparison by numbers.2 The numbers of references to the CJEU are used as parameters against which the influence of the CJEU is measured. However, we do not rely on numbers alone. References by the national courts are analysed in their particular economic, political, and legal environment so as to find tentative explanations for the varying numbers. This approach comes close to comparative law in context, which seems to be a kind of common denominator in the current debate on comparative law.3 Then, section C examines the many factors that a priori could have an impact on whether judges are likely to cite the CJEU in their judgments, and proceeds to discuss what the research has found in relation to the actual role played by these factors. It describes the several factors that we thought might have a role in determining whether CJEU case law would have any impact on the legal system of states that are not members of the EU and that we asked our contributors to examine in relation to their respective jurisdictions. This section then summarizes their findings in this regard. Section D supplements this line of reasoning by placing the contributions and the book project in the context of research on the global reach of EU law, which can be ‘exported’ to non-​members of the EU through various mechanisms. One type of mechanism is through a mutual and formal agreement between a non-​member country and the EU, in which the former commits itself to adopt EU law, or at least to approximate its laws and regulations to those of the EU. Other types of 2 Ralf Michaels, ‘Comparative Law by Numbers? Legal Origins Thesis, Doing Business Reports, and the Silence of Traditional Comparative Law’ (2009) 57 Am J Comp L 765‒95. 3 Jaakko Husa, A New Introduction to Comparative Law (Hart 2015); Esin Örücü and David Nelken, Comparative Law: A Handbook (Hart 2007); Geoffrey Samuel, An Introduction to Comparative Law. Theory and Method (Hart 2014); Mathias Siems, Comparative Law (2nd edn, CUP 2014) 11‒94; Jan Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar 2012).

SUMMARY AND ANALYSIS OF FINDINGS  351 mechanism are more unilateral and spontaneous. They include modes of extraterritorial application of EU law, territorial extension, and the so-​called ‘Brussels Effect’. We show that the Brussels Effect dominates; namely, to the extent that jurisdictions cite and are influenced by CJEU rulings, this happens although they are not legally obligated to do so. How then can the Brussels Effect be characterized? We use the paradigm of neoliberal hegemon and/​or gentle civilizer. This approach cannot follow a comparison by numbers. What is needed is an attempt to group the jurisdictions under scrutiny together in different categories than those used above, based on the relative strength and political relations between them and the EU. This allows us to try to identify the type of influence the EU exercises, through trade agreements and through the CJEU.

B.  Findings: Sorting the Jurisdictions According to CJEU Impact Several difficulties are involved in trying to sort the eleven jurisdictions included in this research according to the impact of the CJEU that we have detected on its courts and regulators. First of all, the jurisdictions in question are very different from each other in almost every aspect: political system, economic development, culture, language, legal traditions, judicial system, type of relationship with the EU, and extent of the obligation to approximate their laws to those of the EU, to name just a few. Second, the contents and searchability of the databases available to our contributors in each jurisdiction varied significantly, thus making precise comparisons problematic. On the other hand, many similarities also exist between some of the jurisdictions, and it is actually the differences that can help us understand which factors are those that have an impact on the level of citation and influence of CJEU judgments in the various jurisdictions. Moreover, the divergences in the findings between the various jurisdictions are so significant, and paint such a clear picture, that they cannot be explained merely by technical differences in databases or by legal traditions. Rather, they tell a story that ought to be told. We therefore consider it useful to sort and present the findings according to the volume of CJEU citations and the impact that these reflect, while pointing to the factors at play in each jurisdiction according to the analyses of our contributors. We will do so while at the same time not losing sight of the technical and inherent differences between the jurisdictions. Thus, in the rest of this section, we suggest sorting the eleven jurisdictions covered in this research into three groups: jurisdictions with relatively high CJEU impact; jurisdictions with moderate CJEU impact, and jurisdictions with low CJEU impact. We summarize and analyse the findings accordingly.

352  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

1.  Jurisdictions with high impact: Switzerland, Turkey, Ukraine, and the Eurasian Union a.  Switzerland Switzerland undoubtedly represents the jurisdiction with the highest CJEU citation rate out of the neighbourhood jurisdictions included in this research, and probably the highest rate of any country outside the EU. Out of the 5,667 published4 judgments included in the database of published Swiss Federal Court (SFC) judgments during the years 1998‒2017,5 no less than 195 cited the CJEU, representing about 3.5 per cent of judgments.6 These judgments cited almost 900 different CJEU judgments or holdings. Amongst all the judgments of the SFC, published and unpublished, a few thousand decisions are estimated to cite the CJEU.7 As noted by Francesco Maiani in Chapter 5 of this volume on Switzerland, the main driver of the extensive citation rate is that the Swiss legal order has progressively become more Europeanized, partly because of international obligations to transpose the acquis, and partly as the result of policies of autonomous adaptation of Swiss law to EU law. The latter type of adaptation was initiated by the Swiss legislator in order to enhance ‘euro-​compatibility’, first only in order to facilitate cross-​border trade, and later as a general guideline for socio-​economic legislation. However, ‘autonomous adaptation’ has also become somewhat of an official policy of the SFC, even where there is no formal requirement to use CJEU precedents, but out of an understanding that euro-​compatible interpretation both of international treaties and of Swiss law autonomously adapted to EU law is imperative for the proper functioning of the deep integration projects pursued by Switzerland and the EU. Although one can find many examples of ‘comparative’ references, driven by a pure logic of lesson drawing and inter-​judicial dialogue, the normal case is that the Swiss judge refers to the European Court of Justice (ECJ) because this step is functionally required—​or even legally mandated—​in discharging the basic duty of interpreting applicable law. This conclusion is indeed apparent from the statistics, which show that in over two-​thirds of cases the SFC referred to the CJEU when interpreting EU–​Switzerland agreements.8 A similar share of cases is also apparent where the court explicitly states or clearly implies that a reference is made pursuant to an obligation, or a quasi-​obligation, to take CJEU rulings into account.9 This 4 ‘Published judgments’ are published in the official reports and are selected by the courts themselves on the basis that they are leading cases, whereas ‘unpublished’ judgments are only made available through the general websites of the courts and carry less weight. 5 This period was chosen because only from 1998 and onwards can sustained practice of CJEU citation be traced. 6 See Chapter 5 by Francesco Maiani in this volume, p 106. 7 See ibid p 104. 8 Namely, in 139 out of 203 cases; see Chapter 5 in this volume by Francesco Maiani, p 108. 9 Namely, in 131 out of 203 cases; see ibid Figure 5.6, p 110.

SUMMARY AND ANALYSIS OF FINDINGS  353 sense of obligation can also explain Maiani’s findings, according to which in about 41 per cent of cases, the SFC cited a CJEU ruling as the main authority, or as one of the main authorities for its rulings, and ruled in agreement with it, and in another 37 per cent, the CJEU is cited with approval as ‘supporting’ authority for an argument already developed on other bases.10 Indeed, Maiani found a correlation between the motivation behind the citation and its impact on the final result, in that ‘(quasi-​)mandatory’ references result in frequent invocation of CJEU precedent as authority with high impact on the result, while more ‘comparative’ references tend to have a lesser impact.11 This finding reinforces the unsurprising conclusion that the normative status of EU law in general, and of CJEU rulings in particular, in a non-​Member State’s legal system plays a decisive role both in determining the frequency of citations and the impact that such citations will have.

b.  Ukraine Another country that shows very high numbers of CJEU citations is Ukraine. In his research, Roman Petrov found no less than 130,798 Ukrainian court decisions that have cited the CJEU. The vast majority of these cases (129,853) were by Ukrainian administrative courts of first instance, whereas 915 were issued by administrative appellate courts, and 30 by the Supreme Court.12 Most of the references in the administrative courts were in the so-​called ‘Chernobyl social protection cases’, where the courts cited van Duyn v Home Office13 as an authority for ‘the principle of legitimate expectations’, and ‘the principle of legal certainty’. Based on these principles, the courts found a basis for affirming the rights of the disabled to claim continuing social and financial assistance from the state.14 Several other court decisions dealt with indirect taxation (forty-​eight cases) and competition (four cases), where the courts cited and followed diverse CJEU rulings on these matters.15 In citing the CJEU, the administrative judges were often guided by an informational letter issued by the High Administrative Court of Ukraine in 2014 confirming that while the case law of the CJEU is not binding on Ukrainian courts, it can be taken into consideration as a source of argumentation concerning harmonious interpretation of Ukrainian law with the EU acquis.16 Besides this letter, Petrov explains the extensive citation pattern of administrative judges, in contrast to other judges, by reference to the fact that the system of administrative courts is the newest in terms 10 See ibid Figure 5.7, p 112. 11 ibid p 112. 12 See Chapter 8 in this volume by Roman Petrov, Table 8.1, p 194. 13 Case 41/​74 van Duyn v Home Office (ECLI:EU:C:1974:133). 14 See eg Case no 4/​337 Person v Darnitsa District of Kiev Centre for Social Assistance Judgment of the District Administrative Court of Kiev of 26 June 2008; and Case no 2/​416 Person v Kiev City Centre for Social Assistance Judgment of the District Administrative Court of Kiev of 25 November 2008. 15 See Chapter 8 by Roman Petrov in this volume, p 195. 16 Informational Letter of the High Administrative Court of Ukraine no 1601/​11/​10/​14-​14 of 18 November 2014 and see Chapter 8 by Roman Petrov in this volume, p 192.

354  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES of its foundation and the youngest in terms of its judiciary, and to the fact that they are the most frequent recipient of EU and Western financial and technical assistance. This means that young Ukrainian administrative judges, well trained in the concepts and case law of the European Court of Human Rights (ECtHR) and the CJEU, are much more likely to refer to the case law of these courts to justify their legal opinions. Petrov has found that the quantity and quality of references to the CJEU by the Ukrainian judiciary is gradually improving, and shows the best dynamic picture within the post-​Soviet countries.17 He offers several explanations for this phenomenon, the most important being the pro-​European foreign policy of Ukraine, which prioritizes integration with the EU and effective implementation of the EU–​Ukraine Association Agreement. In his opinion, this policy encourages pro-​ European activism on the part of the Ukrainian judiciary, including reliance on the case law of the CJEU.18 In this regard, important developments have taken place over the past few years in Ukraine, starting with the conclusion in 2014 of a new and much more comprehensive and deeper association agreement that took effect in 2017,19 and continuing with constitutional amendments that inserted European integration clauses in order to fix the objective of full membership in the EU and the North Atlantic Treaty Organization (NATO) on a constitutional level.20 The constitutionality of this amendment was approved by the Constitutional Court of Ukraine in 2018.21 Petrov expects that these developments will encourage Ukrainian judges to broaden their reliance on CJEU cases, in particular in the process of applying the EU–​Ukraine Association Agreement.22 In this context, it is important to note that this agreement is not only equated to the same status as national laws, but also enjoys priority over conflicting national legislation. Considering that it requires application in several fields of the vast scope of the ‘pre-​signature’ and ‘post-​signature’ EU acquis,23 including legal principles, common values, and relevant CJEU case law, within the legal system of Ukraine, there is strong potential for an even stronger impact of CJEU rulings on Ukrainian law in the future.

17 See Chapter 8 in this volume by Roman Petrov, p 196. 18 ibid. 19 EU–​Ukraine Association Agreement [2014] OJ 2014 L161. 20 Law of Ukraine no 2680-​VIII of 7 February 2019 ‘On Amendment to the Constitution of Ukraine (regarding the strategic course of the state towards acquisition of full membership in the EU and NATO)’. The amended relevant provision of the preamble to the Constitution of Ukraine reads as ‘strengthening civil accord on Ukrainian soil and confirming the European identity of the Ukrainian peoples and the irrevocability of the European and Euroatlantic course of Ukraine’. 21 Decision of the Constitutional Court of Ukraine no 3-​B/​2018 of 22 November 2018. 22 See Chapter 8 of this volume by Roman Petrov, p 197. 23 For more on application of the ‘pre-​signature’ and ‘post-​signature’ EU acquis in EU external agreements, see Roman Petrov Exporting the acquis communautaire through EU External Agreements (NOMOS 2011).

SUMMARY AND ANALYSIS OF FINDINGS  355 However, several impediments standing in the way of that impact need to be addressed. Familiarity with EU Law and CJEU judgments is still insufficient among Ukrainian judges, many of whom are not proficient in any of the EU official languages. The public at large, and especially lawyers, also need to be familiar with EU law and with the provisions of the EU–​Ukraine Association Agreement, in order to bring cases based on them that will require interpretation and application by the courts. CJEU cases that are relevant to Ukraine need to be translated. The EU needs to expand its assistance and training of the Ukrainian judiciary in relation to EU law principles, doctrines, and case law of the CJEU and other European courts.24

c.  Turkey Another country where CJEU influence is strongly connected to the need to harmonize and approximate laws with the EU is Turkey. However, there is a stark contrast between the formal obligations undertaken by Turkey in this regard—​mostly reflected in its legislation and regulation—​and traces of these obligations in the jurisprudence of Turkish courts. On the one hand, Decision no 1/​95 of the EC–​Turkey Association Council, which was established by the Ankara Agreement to ensure implementation and promotion of the association regime, set out highly detailed commitments in relation to approximation of laws. It required Turkey to adopt laws compatible with those of the EU in many fields, such as protection of intellectual, industrial, and commercial property rights, competition law, customs law, import procedures, commercial policy towards third parties, trade defence instruments, and government procurement.25 Moreover, the Decision imposed a general obligation stating: [in] areas of direct relevance to the operations of the Customs Union26 . . . Turkish legislation shall be harmonized ‘as far as possible’ with Community legislation.27

The Decision even included a clause specifically addressing the duty to interpret these provisions ‘in conformity with the relevant decisions of the Court of Justice’ of the EU, in so far as they are identical in substance to the corresponding provisions of the EU Treaty.28 In view of this provision, and the quite extensive harmonization obligations undertaken by Turkey, one would expect to find frequent CJEU citations by Turkish courts, in particular in the above mentioned fields of 24 See Chapter 8 in this volume by Roman Petrov, p 198. 25 Decision no 1/​95 of the EC–​Turkey Association Council of 22 December 1995 on implementing the final phase of the Customs Union [1996] OJ L35, 1–​46. 26 These areas are commercial policy and agreements with third countries comprising a commercial dimension for industrial products, legislation on the abolition of technical barriers to industrial products, competition and industrial and intellectual property law and customs legislation (Decision no 1/​ 95 (n 25) Art 54(2)). 27 ibid Art 54(1). 28 ibid Art 66.

356  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES law. Moreover, the accession negotiations that intensified in the first decade of the twenty-​first century, and the Negotiating Framework agreed upon in that context, were highly elaborate in their requirements for Turkey to adopt the acquis communautaire as a condition for progress in the accession process. The Framework stressed that ‘in addition to legislative alignment, accession implies timely and effective implementation of the acquis’,29 a requirement that would also seem to impose obligations on the judiciary in its interpretation of the relevant laws. In practice, however, Karan’s research30 has found the number of CJEU citations to be relatively low, both when viewed against the backdrop of the extensive harmonization commitments undertaken by Turkey, and as part of the total number of Turkish court decisions searched. Most of the citations were found in decisions by the Court of Cassation—​no less than 650 decisions, citing 1,034 judgments of the CJEU.31 However, these are only a minuscule fraction of the approximately 4.5 million court decisions searched by the author. For the Constitutional Court and the Council of State the numbers are even lower (three and thirty-​two, respectively), although for the latter, the percentage out of the total is somewhat higher than for the two other courts.32 The fields of law where some impact is felt are labour law and social rights, competition law, and intellectual property law. The latter two are expressly included in the approximation commitments of Decision no 1/​95 of the EC–​Turkey Association Council, and labour law is part of the accession process under ‘Employment’. There are also several bilateral agreements between Turkey and some EU Member States on social security, which may have had some impact. Karan notes that both the Labour Code (no 4857) and the Law on Protection of Competition (no 4054) were adopted with the objective of harmonizing the Turkish legal framework with the EU acquis, and were modelled on several EU directives and rules. That would further explain the more frequent reliance of Turkish courts on CJEU cases in these fields, whereas in other fields the citations are extremely scarce. Karan provides several explanations for this scarcity. One is the lack of foreign language knowledge among judges and prosecutors in Turkey, coupled with the lack of translation of CJEU judgments into Turkish. In contrast to ECtHR judgments, which have been translated regularly for more than a decade (already 3,300 are available) and therefore quoted extensively, especially by the Constitutional Court, CJEU judgments are not translated, and therefore quoted much less often. It is quite apparent that the EU Commission has not devoted much effort in this 29 Negotiating Framework, Art 10. See also Art 17, which expressly mentions the judiciary. 30 See Chapter 6 in this volume by Ulas Karan, p 128. 31 See ibid Table 6.1, p 128. 32 For the Council of State, 32 decisions citing the CJEU were found, representing around 0.15 per cent of the total 21,863 decisions included in the database. For the Constitutional Court, only 3 decisions citing the CJEU were found, representing around 0.026 per cent of the total 21,863 decisions included in the database. The 650 decisions of the Court of Cassation found to have cited the CJEU represent only 0.014 per cent of the total 4,491,342 decisions included in the database.

SUMMARY AND ANALYSIS OF FINDINGS  357 direction, and there is very little in the way of judicial dialogue between the CJEU and the Turkish judiciary. Most of the effort is put on the political dialogue, human rights, and the rule of law, which is another reason for the more prevalent citations of ECtHR judgments. Another reason suggested is the non-​binding nature of the rules of EU law in Turkish law, which attest to the fact that commitments to implement certain fields of law in accordance with the interpretation given by the CJEU has not permeated the judiciary as an obligation or commitment of judges. Finally, ideological resistance to EU norms among some judges may also be at work, motivated by nationalistic or conservative attitudes.33

d. Eurasian Economic Union Unlike the other jurisdictions examined in this study, the Eurasian Economic Union (EAEU) is not a state but a regional organization of states. Established in 2015 as a successor to the Eurasian Economic Community (EURASEC), it currently consists of five member states: Armenia, Belarus, Kazakhstan, Kyrgyzstan, and Russia. Although there are no official connections between the EAEU and the EU, it is clear, and has been officially stated,34 that it is to a large extent modelled after the EU, and aims to create a common market for goods, services, capital, and labour. Similar to the EU, the EAEU has some supranational features and an institutional structure that includes a council of heads of state, a ministerial council, and a permanent commission (but no parliament). And it has a court, whose decisions (including its predecessor, the EURASEC Court) are the subject of the EAEU chapter. The research, conducted by Maksim Karliuk, found that about one-​third of all judgments of these two courts cited CJEU cases—​indeed, they often cited more than one such case.35 A similar ratio was found in relation to advisory opinions of the EAEU Court.36 Karliuk also separately counted dissenting opinions, and there too he found a similar ratio of slightly over one-​third of the opinions that cited CJEU cases.37 All in all, a total of seventy-​four different CJEU cases or rulings were cited by the EURASEC Court and the EAEU Court during the seven years examined.38 While the number of judgments and opinions issued by these courts is not high (as is normal for an international court, especially a rather young one), 33 As reflected in the sources referred to in Chapter 6 of this volume by Ulas Karan, fn 88, p 138. 34 See Chapter 4 in this volume by Maksim Karliuk, p 54. Similar to the EU, the EAEU has a council of heads of state, a ministerial council, and a permanent commission (but no parliament). And it has a court. 35 See Chapter 4 in this volume by Maksim Karliuk, Table 4.1, p 64. Out of a combined total of thirty-​ one judgments of the two courts, nine cited CJEU cases, and they cited a total of forty-​one such cases or rulings. 36 ibid. Out of ten advisory opinions, four cited CJEU cases, and they cited a total of ten such cases or rulings. 37 ibid. Out of a combined number of twenty-​two dissenting opinions in the two courts, eight cited CJEU cases, and they cited a total of twenty-​three such cases or rulings. 38 ibid.

358  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES nevertheless the ratio of CJEU citations is much higher than in any of the national court systems that we have examined, including that of Switzerland. This is not surprising, considering that unlike national courts that deal with all fields of law, many of which are outside the jurisdiction of the CJEU, the EURASEC and EAEU courts deal mainly with fields of law that are at the very core of CJEU jurisprudence. Subjects such as customs and antidumping law, free movement of goods and of workers, and staff regulations and employment conditions of EAEU employees, are all subjects possessing a large body of CJEU jurisprudence that can serve as a source of inspiration for EAEU judges.39 Karliuk also foresees that competition law will soon become yet another field where EAEU judges will cite the CJEU.40 Although we have included the EAEU with Switzerland, Turkey, and Ukraine, all with a high CJEU impact, a striking difference exists between the EAEU and the other jurisdictions. Not only is the EAEU a regional organization of states, while the others are sovereign states, but the other states have also entered into deep and comprehensive agreements with the EU, which include quite extensive approximation of law-​related obligations, and the relatively high impact of CJEU rulings is clearly connected with these obligations. In addition, there is an evident desire to integrate their economies with that of the EU. The EAEU, in contrast, has no agreements whatsoever with the EU, and integration with the EU is not part of its objectives. Rather, it can be seen as an alternative to the EU, established by Russia in order to keep some of its former republics away from the EU and closer to Mother Russia’s bosom. Hence, the reliance on CJEU cases is purely voluntary on the part of EAEU judges, and motivated by the desire to learn from an experienced jurisdiction and to emulate ‘the good practices’ of the EU.41 Another reason for the relatively high citation rate of CJEU cases is that EAEU Court judges are assisted by both a personal advisor and advisors of the Court’s Secretariat, who are often well educated in EU law and therefore familiar with CJEU jurisprudence. Indeed, the Statute of the Court specifically provides that the judge’s advisor be an experienced specialist in international law. The tasks of such an advisor include, for example, drafting analysis of the case law of international courts, informing the judge of regional economic integration law, and participating in international conferences, round tables, and seminars on issues of regional economic integration. Likewise, members of the expert and analytical department of the Secretariat are required to have a good command of foreign languages (English, French, and others)42 and one of their tasks is to provide reports on the case law of

39 Karliuk quotes one of the interviewees from the EAEU Court, who explains the frequent reliance on the CJEU as follows: ‘the CJEU is closer to the EAEU Court in terms of competence, as compared to other international tribunals, and many pertinent issues have already been resolved there’ (ibid p 62). 40 ibid p 68. 41 As was the motivation for establishing an economic union in the region modelled upon the EU. See sources cited by Karliuk in ibid fn 4. 42 See eg vacancy requirements at accessed 7 May 2020.

SUMMARY AND ANALYSIS OF FINDINGS  359 other judiciaries: supranational, international, and national.43 Thus, these advisors can overcome the language barrier and legal-​cultural barrier that would otherwise prevent the judges, who are generally members of an older generation educated in the Soviet era, from learning about and citing CJEU judgements. Karliuk also notes that the judges and their advisors actively participate in international conferences, seminars, and other events, and sporadically organize visits to other international courts, including the CJEU, where they meet their counterparts.44 However, the short history of the EURASEC–​EAEU courts also provides a cautionary lesson in relation to overly active reliance on approaches by foreign courts and other supranational legal systems. Officials interviewed by Karliuk confirmed that it is a common view in the Court that excessive judicial activism on the part of the EURASEC Court—​taking inspiration from the CJEU—​led to limitations of the powers of the EAEU Court.45 Consequently, the authority to issue preliminary rulings on references from national courts, which was given to the EURASEC Court, was withdrawn from its successor, the EAEU Court. This shows us that judges need to make sure that legal doctrines borrowed from the CJEU are suited to the political, institutional, and legal culture of their jurisdiction and can be acceptable to their respective constituents.

2.  Jurisdictions with moderate impact: Israel, Russia, and Georgia a.  Israel The research on the impact of the CJEU on the Israeli legal system found only a moderate impact, detected both among the judiciary and in regulation. As for the judiciary, the research found 116 judgments and quasi-​judicial46 decisions citing 268 CJEU decisions or holdings.47 Another finding was that the number of citations has increased over the years, with most of them in the past decade. Arie Reich offers two explanations for this increase: one is a growing awareness of the importance of the EU and its Court of Justice outside the borders of the Union. The other is the increase in the number of judgments issued by the CJEU48 and the 43 See Chapter 4 in this volume by Maksim Karliuk, p 59. 44 ibid. 45 ibid p 75. 46 By this, we mean decisions by the Registrar of Patents and Trademarks and by the Antitrust Director General when issued in adversary procedures. 47 See Chapter 12 in this volume by Arie Reich, Table 12.1, p 277. 48 To illustrate this growth, Reich (ibid) notes that in 1967, the ECJ issued 24 judgments and opinions, in 1977 it issued 100 judgments and opinions, in 1997 the number rose to 242, in 2007 to 379, while in 2015 it reached 399 (in other words, an increase of almost 400 per cent over less than 40 years). During these years (since 1989)  we also have the Court of First Instance (now called the ‘General Court’), which in 2015, for instance, issued 570 final judgments, reflecting a constantly growing docket. (See CJEU, Annual Report 2015 Judicial Activity (CJEU 2016) 93‒94 and 172) accessed 7 May 2020. 49 See Chapter 12 in this volume by Arie Reich, Figure 12.3, p 287. 50 HJC 104/​87 Dr Naomi Nevo v National Labour Court, discussed in Chapter 12 of this volume by Arie Reich, p 291. 51 CrA 4855/​02 The State of Israel v Itamar Borowitz, discussed in Chapter 12 of this volume by Arie Reich, p 294. 52 See Chapter 12 in this volume by Arie Reich, Table 12.3, p 287 and Figure 12.2, p 284. Twenty-​nine per cent of all CJEU citations are in IP law, and 22 per cent in competition law.

SUMMARY AND ANALYSIS OF FINDINGS  361 not prohibited.53 This position was then also adopted by the Competition Authority, citing several CJEU rulings in this respect.54 Other examples of the impact on regulation are in relation to women’s right to retire at the same age as men, where the position taken by the Supreme Court in the case referred to above55 was also adopted by the legislator,56 and the impact of the CJEU Bosman judgment on the regulation of Israeli competitive sports.57 While a moderate influence of CJEU rulings has been found (although less so than that of, say, the US and UK Supreme Court), Reich notes that this is not a result of a sense of obligation on the part of judges or regulators. He notes that the ‘approximation-​of-​laws’ clause in the EU–​Israel Association Agreement is a weak and narrow provision, and does not refer to case law. The influence, to the extent that it exists, is spontaneous, resulting sometimes from the reputation of the CJEU and the soundness of its rulings, and sometimes from the affinity of the Israeli law in question with EU law. In that respect, Israel differs from Switzerland, Turkey, and Ukraine, where the courts’ references to, and adoption of, CJEU rulings, stem to a large degree either from express obligations to harmonize with the EU acquis, or from official policy to do so. However, in some instances, the influence can be seen as a type of de facto Brussels Effect, where tribunals recognize the importance of achieving harmony in fields transcending national boundaries and therefore adopt CJEU interpretations of the law.

b.  Russia The research on Russia, performed by Paul Kalinichenko, found fifty-​two judgments by Russian courts, during the period 2006–​18, citing various CJEU decisions seventy-​ eight times.58 This is, of course, significantly fewer citations than neighbouring Ukraine (with 130,798 judgments citing CJEU), but also far fewer than Israel (with 116 judgments citing 268 CJEU decisions). Considering that Russia is a much bigger country and that the database used contained more than twice as many judgments as the Israeli database,59 these findings indicate that CJEU citations by Russian courts are quite infrequent, although not non-​existent. Most of the cases (forty-​eight) where Russian courts cited CJEU judgments were in civil and commercial matters, in such fields as taxation, choice of jurisdiction,

53 Class AS (District Central) 46010-​07-​11 Ophir Naor v Tnuva Food Industries Agricultural Co-​Op in Israel Ltd and CC 41838-​09-​14 (Tel-​Aviv District Court) Weinstein v Dead Sea Works Ltd—​both judgments by district courts, discussed in ibid p 295–298. 54 As discussed in ibid p 298–299. 55 See Nevo (n 50). 56 The Equal Retirement Age for Male and Female Workers Law, 5747-​1987, passed in the Knesset on 17 March 1987, discussed in Chapter 12 of this volume by Arie Reich, p 293. 57 As discussed in Chapter 12 of this volume by Arie Reich, p 299–301. 58 See Chapter 7 of this volume by Paul Kalinichenko, Table 7.1, p 159. 59 The Russian ‘Consultant Plus’ commercial legal database used by Kalinichenko (ibid) contained around 9 million judgments, whereas the Israeli Nevo database contained about 4 million documents.

362  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES intellectual property rights, customs, and transport liability.60 Interestingly, the courts have refused to rely on the CJEU Simutenkov case61 as a basis for adopting the non-​discrimination principle and access to justice by EU citizens in Russia under the EU–​Russia Partnership and Cooperation Agreement (PCA) provisions, although such treatment was granted by the CJEU to Russian citizens in the EU.62 The vast bulk of these (forty-​four) were considered by the Russian arbitration courts at different levels of the judicial system, and mostly by the courts of more developed regions of Russia.63 In most of these decisions, the courts cite CJEU case law as an appropriate example of international practice and Kalinichenko is of the opinion that these citations usually do not have a significant impact on the outcome of the case.64 To that one can add that the absence of citations in a majority opinion by the Constitutional Court, and only two by the Supreme Court, would also indicate that unlike Israel, where Supreme Court decisions influenced by the CJEU, also influence lower courts, in Russia we have no such indirect impact on lower courts. On the other hand, citation of CJEU decisions in Russia is on the rise,65 most of them since 2014. This is surprising, considering that 2014 was when the Crimean Peninsula was annexed by Russia, prompting sanctions by the G7 states, including the EU, with EU–​Russia relations deteriorating into a period of ‘freeze’. In addition, Kalinichenko notes that there are more than 200 Russian cases applying the EU–​ Russia PCA of 1997, and about 1,000 cases which refer to EU law.66 The Russian judiciary treats the EU–​Russia PCA as an international agreement, with self-​ executing rules which take precedence over national legislation. As for EU primary and secondary legislation, these are referred to by Russian courts not as binding, but as persuasive sources of law, especially in economic-​related fields. Hence, the deterioration of relations does not seem to have had an impact on the move within Russia towards approximating Russian legal standards to those of the EU, not just among regulators but also within the judiciary. Kalinichenko provides several explanations for this finding. One is that it is a result of EU training programmes for legal academics and law professionals,

60 See Chapter 7 of this volume by Paul Kalinichenko, Table 7.2, p 161. 61 Case C-​265/​03 Simutenkov v Ministerio de Educación y Cultura, Real Federación Española de Fútbol [2005] ECR I-​2579. This well-​known case, which dealt with a Russian citizen who played professional football in Spain, made two important rulings: (i) that the EU–​Russia PCA had the potential of direct effect within the EU legal system; (ii) that Russian nationals legally employed in a EU Member State have the right to non-​discriminatory treatment in relation to all working conditions, remuneration, and dismissal. 62 See Chapter 7 of this volume by Paul Kalinichenko, p 165. Kalinichenko reports that there have been attempts by counsel before the courts to rely on this case and on the PCA to support the demand for such equal treatment, but they have not yet been successful. 63 ibid. 64 ibid Figure 7.1, p 162. 65 ibid Figure 7.2, p 171. 66 ibid.

SUMMARY AND ANALYSIS OF FINDINGS  363 including judges and law students (ERASMUS Plus; TAIEX). He notes that the main CJEU judgments are informally translated into Russian and that many Russian judges (especially from the higher courts) speak foreign languages and can read CJEU judgments on EU official websites. Second, he notes that for Russia, the EU will always remain its main trade and economic partner, despite current political problems in mutual relations. Russian courts will rely on the EU acquis and cite CJEU judgments in those spheres that ensure and promote EU–​Russia trade relations. Moreover, he thinks that a cultural legal affinity exists between modern Russian law and European law. Reliance on the EU acquis, and to a lesser degree on CJEU judgments, is a direct result of ‘the transit from Soviet primitivism towards constructing a modern open-​for-​the-​world legal system, which Russia has tried to achieve over the past twenty-​five years.’67 There may also have been some impact from CJEU decisions on Russian regulation, for instance in relation to ‘the right to be forgotten’ and in the sports field, but this is hard to ascertain.68 However, it would seem that with more education and legal training on the EU acquis and CJEU case law, and hopefully with improved relations, one could expect a continuation of the legal approximation process.

c.  Georgia In terms of number of citations, the research on Georgia has found fewer CJEU citations than in both Russia and Israel, namely a mere twenty-​one decisions citing sixty-​four CJEU rulings.69 Nevertheless, several reasons may explain why Georgia should still be included in the category of jurisdictions with moderate CJEU impact. First, the statistics on Georgia are mainly based on decisions by the Constitutional and Supreme Courts, whereas decisions by all the other courts (district and appeal courts) could only be researched starting from 2019 because of technical obstacles. Hence only one year is included, and during this time as many as six decisions were found, citing the CJEU eighteen times. If we were to extrapolate from these numbers, the number for the six-​year period of 2014–​19, we would arrive at thirty-​six district and appeal court decisions, citing the CJEU around one hundred times. While such a calculation is somewhat speculative, pinpointing 2014 is not arbitrary: this is the year when the EU–​Georgia Association Agreement was signed, providing for a Deep and Comprehensive Free Trade Area (DCFTA) and several legislative approximation mechanisms.70 67 ibid p 172. 68 Kalinichenko (ibid p 171–172) notes that Russia has adopted a law on the right to be forgotten, but because drafts of Russian laws do not contain specific references or explanations regarding approximation with EU rules, it is impossible to prove CJEU influence. The same refers to regulation in the field of sports and athletics. 69 See Chapter 11 in this volume by Gaga Gabrichidze, Table 11.1, p 249. 70 EU–​Georgia Association Agreement [2014] OJ L261. For a description of these mechanisms, see Chapter 11 in this volume by Gaga Gabrichidze, p 246–247.

364  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Second, the extensive legal approximation obligations undertaken by Georgia, which entail approximation of Georgian laws with nearly 300 acts of EU law, have already resulted in 9 new Georgian laws adopted, up to 70 laws that have been amended, and up to 100 by-​laws that have been issued—​all this only in the 3-​year period 2015–​17.71 Hence, Georgia is on the path of extensive legal approximation with the EU. Moreover, the rising numbers of CJEU citations found by Gabrichidze in his research over the past few years72 would appear to correlate with this process. Indeed, in all of the decisions by the district courts, appeal courts and the Supreme Court issued in 2019 and citing the CJEU, the judges referred to CJEU case law while taking into account approximation of the relevant Georgian law to that of the EU.73 The fields of law where CJEU citation has occurred also seem to correlate with the fields in which legal approximation is mandated: competition law (nine decisions), consumer law (four decisions), fundamental rights (four decisions), tax law (one decision), trademarks (one decision), corporate law (one decision), and contract law (one decision).74 The relevant provisions in the EU–​Georgia Association Agreement where such commitments are found are:  Article 204 (Competition Law); Article 346 (Consumer Law); Articles 4 and 13 (Fundamental Rights); Article 285 and Annex XXII (Taxation); Article 165–​168 (Trademarks); and Articles 316–​319 (Corporate Law). The high number of CJEU citations in the field of competition law can be explained by reference to two important facts noted by Gabrichidze: one is the EU origin of Georgian competition law and the ‘Comprehensive Competition Policy Strategy’ adopted by the Government of Georgia in 2010, which declared that development of this field should be oriented towards EU and international standards. This has also been cited by the Supreme Court as a reason for extensive use of CJEU case law.75 The second is that this has been the main field of EU law where Georgian judges have had the opportunity to attend in-​service training. Gabrichidze lists four different training sessions and seminars for judges and their assistants in the field of competition law conducted with the support of various European sponsors since 2015, and only one focusing on fundamental rights from the perspective of EU law and CJEU case law.76 No such training sessions have been offered on other subjects of EU law, such as labour law, immigration law, or company law. This stands in contrast to much more training on the European Convention on Human Rights (ECHR) and the case law of the ECtHR, which are integral parts of judicial

71 See Chapter 11 in this volume by Gaga Gabrichidze, Figure 11.1 at p 250 shows a dramatic increase in CJEU citations during the three years 2017, 2018, and 2019. 72 ibid Figure 11.1, p 250. 73 ibid p 253–254. 74 ibid Table 11.2, p 250. 75 ibid p 254. 76 ibid p 254–255.

SUMMARY AND ANALYSIS OF FINDINGS  365 training in Georgia; consequently, the ECHR is the international treaty that is by far the most frequently mentioned by Georgian courts.77 More reliance on the CJEU in Georgia is also hampered by the language barrier. Here again, a comparison with the ECHR is illuminating. While a large body of legal literature is available in Georgian on the ECHR,78 along with on-​line access to the case law database of the ECtHR in Georgian,79 only one textbook on EU law and one publication of selected cases of the CJEU is available in Georgian. Thus, improved access to CJEU decisions and more judicial training is likely to enhance reliance on CJEU case law. Moreover, implementation of the approximation clauses and other approximation-​related provisions in the EU–​Georgia Association Agreement is also likely to lead to increasing usage of CJEU case law by Georgian courts.

3.  Jurisdictions with low impact: Armenia, Azerbaijan, Jordan, and Tunisia The four remaining jurisdictions—​namely those of Armenia, Azerbaijan, Jordan, and Tunisia—​can be classified as ‘low CJEU impact’ jurisdictions. The first two are part of the EU’s Eastern Partnership, whereas the other two are part of the Euro-​ Mediterranean Partnership. In Jordan, no citation whatsoever of CJEU was found—​neither by the courts or by the Jordanian Industrial Property Protection Directorate or Competition Directorate.80 Apparently, neither is there is reference to any other EU legal sources.81 In Tunisia, too, no court decision was found citing the CJEU.82 However, the situation with the Tunisian Competition Council is different: here the author of the research, Béligh Elbalti, found ten opinions citing seventeen CJEU cases, and three decisions citing five CJEU cases.83 In Armenia, only two decisions by the Constitutional Court were found that cited CJEU cases,84 while no such citations were found in the decisions of any other court or of the Competition Authority.85 In neighbouring Azerbaijan, only three 77 ibid. 78 ibid. 79 The Georgian interface was prepared and launched in the framework of the EU/​Council of Europe joint project ‘Strengthening the Application of the European Convention on Human Rights in Georgia’. About 880 texts are in Georgian in the HUDOC database already. Thus, the Georgian user interface joins the existing English, French, Russian, Turkish, and Spanish versions. 80 See Chapter 13 in this volume by Abdullah Nawafleh, p 316 and p 318. 81 ibid. The author relies on both search engines and interviews with Jordanian judges, professors, and lawyers. The latter confirmed that Jordanian judges only refer to legal material published in Arabic. 82 See Chapter 14 in this volume by Béligh Elbalti, p 337. 83 ibid Table 14.1, p 338–339. 84 See Chapter 9 in this volume by Narine Ghazarian, p 205. 85 ibid p 209.

366  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES decisions—​also by the Constitutional Court—​were found, but none by any other court or tribunal.86 The Azeri competition authority, named ‘the State Service for Antimonopoly Policy and Consumer Protection’, focuses mainly on consumer issues rather than on ensuring competition, and no references to the CJEU could be found in its decisions.87 When looking for common denominators of these jurisdictions that could perhaps explain the lack of CJEU references, one would naturally look first at their relationship with the EU, and whether it includes legal approximation obligations. One commonality that stands out is that while they all have bilateral agreements of some sort with the EU, none of these agreements include extensive legal approximation commitments. Jordan has an Association Agreement with the EU, more than twenty years old (signed in 1997), quite limited in its application, and with a very weak legal approximation clause.88 The same is true of Tunisia: relations between the EU and Tunisia are based on an Association Agreement signed back in 1995,89 and this, too, has a very weak approximation clause.90 Negotiations on a new agreement—​a DCFTA—​were launched in 2015, and are still ongoing. As for Azerbaijan, the EU–​Azerbaijan PCA dates back to 1999,91 but an attempt to sign a DCFTA failed in 2014.92 The PCA contains an approximation clause (Article 43) that is somewhat more detailed than in the Jordanian and Tunisian agreements, but still formulated in ‘best endeavours’ and gradual terms, not tied to any benefits or sanctions, and highly dependent on assistance from the EU. Indeed, research has found that not much has been done to implement it.93 Similarly, the EU’s attempt to sign a DCFTA type of Association Agreement with Armenia instead of the PCA from 1996, failed when Armenia withdrew from the negotiations in 2015 due to pressure from Russia.94 Due to the same 86 See Chapter 10 in this volume by Azar Aliyev, p 234. 87 ibid p 238. 88 Article 69: ‘The Parties shall use their best endeavours to approximate in the Community and in Jordan, their respective laws in order to facilitate the implementation of this Agreement.’ This is a neutral ‘best endeavours’ clause. It is neutral in the sense that it applies to both parties, and does not specify who should approximate their laws with whose. And it only applies to the extent that is necessary ‘to facilitate the implementation of this Agreement’, ie to facilitate trade. 89 ‘Euro-​ Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part OJ L97, 30 March 1998, 2–​183. 90 The provision on ‘Approximation of Legislation’ is found in Art 52 of the Association Agreement and all that it provides is: ‘Cooperation shall be aimed at helping Tunisia to bring its legislation closer to that of the Community in the areas covered by this Agreement.’ 91 Partnership and Cooperation Agreement between the European Communities and their member states, of the one part, and the Republic of Azerbaijan, of the other part, OJ L246, 17 September 1999,  3–​51. 92 See Chapter 10 of this volume by Azar Aliyev, p 223. 93 Narine Ghazaryan, ‘Legislative Approximation and Application of EU Law in Azerbaijan’ in Roman Petrov and Peter van Elsuwege (eds), Legislative Approximation and Application of EU Law in the Eastern Neighbourhood of the European Union (Routledge 2014). 94 Narine Ghazaryan and Anna Hakobyan, ‘Legislative Approximation and Application of EU Law in Armenia’ in Petrov and Van Elsuwege (n 93); Laure Delcour and Kataryna Wolczuk, ‘The EU’s

SUMMARY AND ANALYSIS OF FINDINGS  367 pressure, Armenia decided to join the EAEU,95 which limited some of the options for deep integration with the EU. Nevertheless, a Comprehensive and Enhanced Partnership Agreement (CEPA) was signed in 2017, which has been only provisionally applied since 2018.96 While this agreement does include obligations on legislative approximation and regulatory convergence in areas compatible with Armenia’s membership in the EAEU, they do not apply to the Armenian judiciary, or to the duty to take account of CJEU case law. Indeed, in her interviews with Armenian judges and academics asking them about the lack of references to CJEU cases, Narine Ghazaryan notes that they all emphasized the absence of any obligation on Armenian judges and practitioners to follow EU law.97 As noted by one of the judges interviewed, there is a psychological underpinning to this: unless the practice is mandatory, judges will not follow CJEU jurisprudence voluntarily.98 However, this reasoning cannot give us the complete answer to our question, bearing in mind that there are jurisdictions, such as Israel and Russia, with similar or even weaker approximation obligations, where much more CJEU citations and impact have been found. Ghazaryan realizes this and therefore points to other explanations rooted in legal education and culture, such as lack of education and judicial training in EU law, lack of EU funding or technical assistance with such training, and the language barrier.99 In this context, she notes that few Armenian judges would be sufficiently versed in English, French, or German, let alone other official EU languages, to read and understand CJEU judgments, and that there is not even one single source on EU law in the Armenian language.100 To that one should add the overwhelming workload of judges at various instances. But beyond the lack of education and language and the heavy workload, she admits that there is also a judicial culture of reluctance on the part of Armenian judges to follow international law, including the positions and opinions of international interpretative bodies.101 Similar explanations are also offered by our contributors from Jordan, Tunisia, and Azerbaijan. Abdullah Nawafleh, in his research on Jordan, notes that foreign language skills among Jordanian judges are limited (only 2 per cent of judges are fluent in English),102 and since foreign judgments are not translated into Arabic, access to non-​Arab court decisions becomes problematic for Jordanian judges.103 Unexpected “Ideal Neighbour”? The Perplexing Case of Armenia’s Europeanisation’ (2015) 37(4) J Eur Integr 491.

95

See Chapter 9 in this volume by Narine Ghazarian, p 204.

96 ibid. 97

ibid p 209. Interview, Court of First Instance, April 2018. 99 See Chapter 9 in this volume by Narine Ghazaryan, p 210–212. 100 ibid. 101 ibid. 102 See Chapter 13 in this volume by Abdullah Nawafleh, p 317 and the sources cited in fn 41. 103 ibid p 317. 98

368  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Hence, his interviewees reported that due to the similarity in culture and language, they are more prone to cite Arab court decisions. He also found that none of the Jordanian or Arab law schools where Jordanian judges and lawyers (including their legal assistants) study teach EU law in their curricula.104 Azar Aliyev, in his research on Azerbaijan, notes that the older generation of lawyers, to which almost all of the judges belong, is not very familiar with EU law, and much less fluent in English or any other EU language than the new generation, which joined the profession only recently.105 These general obstacles are aggravated by overloaded judges and general reluctance by the Supreme Court to refer to foreign jurisprudence.106 Even when Azerbaijani lawyers are aware of the existence of the CJEU, they usually regard CJEU jurisprudence as not relevant for Azerbaijan.107 In Tunisia, the situation is quite different. Judges and lawyers are very well versed in one of the major EU languages, namely French, and citation of French legal sources is abundant.108 In fact, Elbalti, in her research presented in Chapter 14, notes that Tunisian law is heavily influenced by French law. Hence, there is hardly a language barrier that prevents Tunisian judges from reading and relying on CJEU decisions. Nor is there a cultural or ideological explanation for the total lack of CJEU citations by Tunisian courts (in contrast to the Tunisian Competition Council), given that they do not hesitate to cite judgments by French courts and other legal material from France. Paradoxically, so believes Elbalti, it is the dominance of French legal sources in Tunisian law—​where most of the references to foreign legal sources are to French law, French case law, or French legal writings—​that causes lawyers and judges to turn only to these sources when in need of comparative law.109 This is, then, some kind of a ‘crowding out’ effect110 that leaves no room for EU sources and CJEU case law. With poor abilities to perform comparative legal research, and the wrong perception that EU law and CJEU judgments mainly deal with internal economic integration in the EU,111 lawyers and judges are content with their use of French legal sources, and see no need to turn to EU sources. The situation seems to be different with the Tunisian Competition Council, which, as noted above, relies more heavily on EU competition law, including CJEU judgments in this field. This is probably connected to the fact that the judges and officials of the Council realize that Tunisian competition law is strongly influenced by EU law and that they need to turn to EU competition law in order to interpret and apply it. Add to this that national competition law in EU Member States is even 104 ibid. 105 See Chapter 10 in this volume by Azar Aliyev, p 239. 106 ibid. 107 ibid p 233. 108 See Chapter 14 in this volume by Béligh Elbalti, p 346. 109 ibid p 344. 110 This term, borrowed from economics, is our own description of the phenomenon, not used by Elbalti. 111 See Chapter 14 in this volume by Béligh Elbalti, p 345.

SUMMARY AND ANALYSIS OF FINDINGS  369 more heavily influenced by EU law, so that when turning to French material in this field, Tunisian judges are likely to encounter EU law and CJEU judgments. When reading these and some of the other chapters in this collection one is struck by the fact that in many of the countries surveyed there is, or has been, EU-​ financed assistance to the judicial system, including training of judges. This is the case, for instance, in Jordan, where the EU has supported Jordan with implementation of the Judicial Upgrade Strategy (JUST) (2007–​09), which aims to enhance judicial independence and to ensure the competitiveness of the sector based on best international practices.112 This justice reform forms part of the EU’s financial assistance to Jordan, amounting to between €587 million and €693 million for the years 2014‒20.113 The same applies to Azerbaijan, Armenia, and Tunisia. In Azerbaijan, the EU has been involved in funding numerous cooperation projects which aim to improve the efficiency and quality of the judiciary by professional training for judges and court staff.114 Similar projects have been funded by the EU for the Armenian judiciary and justice officials.115 In Tunisia, a Support Programme for Justice Reform financed by the EU was launched in 2012, with the objective of reinforcing the independence and efficiency of the judiciary, improving access to justice, and modernizing the prison system.116 In this regard, several twinning agreements have been put in place in order, inter alia, to support the training of justice officials by organizing regular practical training.117 However, these projects apparently did not include any teaching of EU law or CJEU cases, or any meetings

112 Chapter 13 in this volume by Abdullah Nawafleh, p 316. See also Sheila Carapico, Political Aid and Arab Activism: Democracy Promotion, Justice, and Representation (CUP) 36‒37. 113 Delegation of the European Union to Jordan of 15 May 2016 ‘EU Relations with Jordan’ accessed 7 May  2020. 114 ‘Note for the Press: Improving the Efficiency and Quality of Judicial Services in the Republic of Azerbaijan’ accessed 7 May 2020; ‘Note for the Press: Application of the European Convention on Human Rights in Azerbaijan’ accessed 7 May 2020. 115 As noted by Narine Ghazaryan in Chapter 9 of this volume, p 210, n 70, the EU has periodically sponsored justice reform in Armenia to boost the independence and efficiency of the judiciary both through the Technical Aid for the Commonwealth of Independent States (TACIS) financial instrument and the financial instruments of the European Neighbourhood Policy (ENP). Most notably, the EU allocated EUR 18 million for justice reform in 2008, followed by Phase II allocating EUR 20 million in 2012. The funding was used inter alia to support the EU–​Council of Europe (CoE) Partnership for Good Governance programme with the aim of improving the legal framework, training of legal professionals, raising awareness of the role of women judges, and increasing the independence of the judiciary inter alia through social and financial changes (see further accessed 7 May 2020). A further EUR 4 million was allocated to ‘Consolidation of the Justice System in Armenia’ as part of budget support in 2017 under the European Neighbourhood Instrument. 116 On this programme, see accessed 7 May 2020. 117 See accessed 7 May 2020. It interesting to note that the objective of the programme is defined there as ‘to contribute to the strengthening of the efficiency and independence of the judiciary in conformity with European and international norms’ (‘Ce projet vise à contribuer au renforcement de l’efficacité et de l’indépendance de la justice conformément aux normes européennes et internationals’) (emphasis not original).

370  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES or judicial dialogue between CJEU judges and judges from neighbouring countries, as is also evident from the findings regarding these jurisdictions. It would seem that the EU has not set legal approximation with its neighbours as a prime objective in its funding and cooperation projects with them. Looking to the future, it would seem that a few measures could be taken that are likely to strengthen the CJEU impact in these four jurisdictions, as well as others. First and foremost, financial and professional resources should be devoted to legal education and judicial training on EU law and CJEU jurisprudence. The wrong perceptions about what this law deals with need to be uprooted, and its relevance to many issues arising in the courts of neighbouring countries needs to be stressed. CJEU decisions—​indeed, EU law in general—​need to be made accessible to the legal profession of these countries, through translation of decisions and production of monographs on EU law in their own languages. If the EU is serious about wanting to export the acquis to neighbouring countries, it also needs to strengthen its bilateral agreements, upgrading them to DCFTA, with more extensive legal approximation obligations that will relate not only to regulation and legislation, but also to how these norms are interpreted and implemented in the EU. That would mandate reference not only to EU regulative norms, but also to the case law of the CJEU. These obligations need to be incorporated in the domestic legal system of the neighbouring states concerned, so as to ensure that they will reach the judges and oblige them to act based upon these EU norms.

C.  Potential Impact Factors and Actual Role Played 1. The hypothesis Before embarking on this research project, we had hypothesized several factors that we thought might play a role in determining whether CJEU case law would have any impact on the legal system of states not members of the EU. We therefore asked our contributors to look out for them, and discuss to what extent these factors did in fact play a role in shaping the impact picture that arose from their research. The factors were: • Basic features of the legal system studied: How did it develop? What were the cultural and historical origins? What were the foreign influences on its development? Is there a common law/​civil law/​Soviet law/​sixed system? • Relations with the EU: is there an agreement that includes an ‘approximation-​ of-​laws’ clause, or the like? How extensive is it? How has it been implemented? Does it impose any obligations on the judiciary? • What is the structure and function of the judiciary? Who are the judges, and how are they appointed? Where have they been educated, and which

SUMMARY AND ANALYSIS OF FINDINGS  371









languages do they command? Do the judges have legal assistants (such as domestic and/​or foreign students undergoing training (stagiaires), legal clerks, legal research departments in the court) that may assist them to access CJEU judgments? • To what extent do judges in this country use precedents, and what is the status of precedents? What are the techniques of judicial reasoning? Are there dissenting or concurring opinions? • What is the extent of citing foreign and international law in general (not just the CJEU) in the judiciary being studied? Which foreign legal systems and judgments are cited more and which less? Why? Is there ideological resistance to reliance on foreign law in general, or on EU law in particular? • To what extent is EU law taught in this jurisdiction, so that lawyers and judges may be familiar with CJEU decisions? Is there judicial training on EU law? • Is there any known interaction between judges of the country studied and judges or other representatives of the CJEU (meetings, conferences, correspondence, and so on)? Do they have any interaction with other foreign judges? • To the extent that CJEU decisions are cited, is this pursuant to international obligations to do so, or perhaps in fulfilment of domestic requirements? Or is this a result of autonomous, spontaneous adaptation (such as the Brussels Effect) or just as a source of ‘best international practice’ or inspiration?

In this section, we try to draw general conclusions on whether and to what extent these factors were influential in determining the actual impact of CJEU judgments on neighbouring jurisdictions. First, Table 15.1 attempts to summarize our findings along some of these factors. Then we elaborate more on these findings.

2. Actual findings The type of legal system, as such, that is, whether civil law, common law, Soviet law, or a mixed system, does not seem to have any influence on the level of impact. None of our contributors mentioned this factor as influential in discussing their findings. Among the high-​impact jurisdictions, we have civil law countries (Switzerland, Turkey) and former Soviet law jurisdictions (Ukraine and the EAEU). In the low-​impact jurisdictions, we have former Soviet law countries (Armenia and Azerbaijan) and Arab countries with civil law traditions (Tunisia) and a mixed system (Jordan—​civil law, common law, and Islamic law). We also did not find any impact from whether judges used precedents, and what the status of precedents is in the respective jurisdictions. Relations with the EU, on the other hand, and whether there was a strong international obligation to approximate the laws in the country in question with those

Weak commitment

PCA. Since 2017—​CEPA

PCA

No EAEU–​EU N/​A. agreement, only with Alternative to EU. members

DCFTA

Armenia

Azerbaijan

Eurasian Economic Union

Georgia

Strong and extensive commitments

Legislative adoption of acquis in fulfilment of commitment

Modelled after EU/​ CJEU; some supra national features

Yes—​no translation of CJEU decisions, only ECtHR

No

Yes

Yes—​only by Yes—​no Armenian legislator, but also language source on adaptation with EU Law Russia and EAEU. Judicial reluctance to follow int’l or EU law.

Autonomous Language barrier adaptation (Brussels Effect or TE)

Moderate No—​judicial commitment, but not reluctance to follow implemented foreign or EU law

Extent of approximation commitments

Jurisdiction Type of EU agreement

Table 15.1  Potential impact factors and their actual impact

EU judicial training mainly in competition law, therefore many citations

Assistants educated in EU law and int’l law

Very little—​EU financed judicial training, but not on EU law. No EU law education in law schools.

Very little—​EU financed judicial training but not on EU law. No EU law education in law schools.

EU law studies and judicial training

Moderate—​ citations in areas of approximation

Relatively high—​ one-​third of all judgments!

Low

Low—​no domestic legal status of CJEU decisions

CJEU impact

372  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

Old AA

Weak commitment

Weak—​friction and freeze in political relations with EU, but no clear impact on CJEU citations

Tunisia

PCA

Russia

Weak commitment

Extensive

Old AA

Jordan

Weak commitment

Switzer​land Deepest integration agreements outside EEA

Old AA

Israel

No—​dominance of French law and legal sources

Express judicial and legislative policy of autonomous adaptation

Weak effect—​'Best practice’, but PCA takes precedent over domestic law

No

Brussels Effect and TE. ‘Best practice’. No sense of commitment.

No

No

Some

Yes—​no translation into Arabic. Only 2 per cent of judges are fluent in English.

No

No training, no judicial dialogue

Yes—​well-​educated also in EU law

EU judicial training

EU financed judicial training, but not on EU law. No EU law education in law schools.

Low

Very high

Moderate

Continued 

Non-​existent

Some—​room Moderate for more judicial training and dialogue

SUMMARY AND ANALYSIS OF FINDINGS  373

Detailed commitments on approximation of laws. Duty to interpret as the CJEU when laws are identical!

Old AA. Customs Union Decision No 1/​95 of AA Council Candidate for EU membership Negotiating Framework.

DCFTA. Priority to FTA over conflicting national legislation

Turkey

Ukraine Pro-​European foreign policy. Constitutional amendment to enable adoption of acquis and EU membership.

No—​judiciary not eager to adopt EU law. Ideological resistance. EU law not binding domestically.

Some

Yes—​no translation into Turkish. Only ECtHR.

Autonomous Language barrier adaptation (Brussels Effect or TE)

CJEU impact

Yes—​EU funded Very high training to young administrative judges. Not enough knowledge of EU law among other judges and lawyers.

No training, no High, but relative to judicial dialogue, not commitments—​low enough education in EU law

EU law studies and judicial training

Source: Results of this research project. Note:  AA—​Association Agreement; Old AA—​ Association Agreement concluded in the 1990s or before; PCA—​ Partnership and Cooperation Agreement; CEPA—​Comprehensive and Enhanced Partnership Agreement; DCFTA—​Deep and Comprehensive Free Trade Agreement; TE—​Territorial Extension.

Extensive commitments. ‘pre-​ signature’ and ‘post-​ signature’ EU acquis.

Extent of approximation commitments

Jurisdiction Type of EU agreement

Table 15.1  Continued

374  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

SUMMARY AND ANALYSIS OF FINDINGS  375 of the EU, did seem to make a difference. Not surprisingly, the country with the highest CJEU impact (Switzerland) is also the country with the deepest integration agreements with the EU outside the European Economic Area. Another high-​impact country is Ukraine, which has a DCFTA with extensive and strongly worded approximation commitments, linked to strict market access conditionality. It requires Ukraine to adopt both ‘pre-​signature’ and ‘post-​signature’ EU acquis. The third country in this category is Turkey, which also has detailed commitments on legal approximation. This commitment includes the obligation to interpret Turkish laws in conformity with the relevant decisions of the CJEU, when laws are identical in substance.118 One also needs to keep in mind that Turkey is still a candidate for EU membership, which also might serve as an impetus for legal approximation, though with fading importance. However, the case of Turkey also teaches us that formal agreements and obligations are not enough. What matters is also the political will to integrate with the EU, as well as the willingness of the judiciary to contribute to this goal. It is well known that Turkey–​EU relations under Erdoğan have become very strained and have been grinding to a gradual standstill for years, with EU membership seeming less and less likely. According to Karan, the Turkish judiciary has largely disregarded the implicit obligation to harmonize its practice with the acquis and the jurisprudence of the CJEU.119 He describes the judiciary as being ‘state-​oriented and nationalistic’, with many of them opposed to EU accession and to adoption of EU norms.120 Azerbaijan is another example of this: while it has a relatively detailed legal approximation obligation in its PCA with the EU (not anything like Switzerland, Ukraine, Turkey, or even Georgia, but still more detailed and stronger than, say, Israel and Russia), there has been almost no legal approximation, and very few CJEU citations. The reason seems to be that until now there has not been any real political will to deepen integration with the EU, and there is reluctance among the Azeri judges to follow foreign or EU law.121 The correlation between weak approximation obligations and low CJEU impact is also evident in the cases of Armenia,122 Jordan, and Tunisia. However, there they are also coupled with a lack of political will to deepen economic and legal integration with the EU and a lack of judicial openness and professional ability to cite and rely on EU law in general, and CJEU judgments in particular. It is here where the contrast with Israel and Russia stands out. Both of these countries have only weak 118 Decision no 1/​95 of the EC-​Turkey Association Council (n 25) Art 66. 119 See Chapter 6 in this volume by Ulas Karan, p 123. 120 ibid p 138. 121 See Chapter 10 in this volume by Azar Aliyev, p 239. 122 Until 2017, Armenia had an old PCA with weak approximation obligations. In 2017, another agreement was signed, the CEPA, with more extensive obligations in the field of legal approximation. However, it has only been provisionally applied since 2018, has no obligations on the judiciary, and has not yet shown any impact.

376  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES approximation obligations, similar to Armenia, Jordan, and Tunisia, but their judiciaries have shown much more willingness to cite and rely on CJEU decisions. They do this not out of a sense of obligation, but rather as a source of inspiration regarding ‘best international practice’, and in some cases based on the realization that harmonization with the EU is desirable; that is, a type of ‘Brussels Effect’.123 The courts of these countries are also generally more prone to perform comparative legal research and to cite foreign judgments and legal sources in a judgment as sources of inspiration.124 The same is true of Switzerland, the country with the highest CJEU impact out of all jurisdictions examined. Maiani writes that ‘Swiss judges have a long-standing tradition of referring to foreign legal materials in their decisions.’125 Another factor that has proved to be extremely influential is the language barrier. It is clearly evident in three out of four low-​impact jurisdictions (Armenia, Azerbaijan, and Jordan),126 and in two out of three moderate-​impact jurisdictions (Georgia, and to a lesser degree Russia)127 that the fact that many judges and lawyers do not have a good command of any of the EU official languages makes access to CJEU judgments much more difficult, and sometimes impossible. It is also alluded to in the chapters on Turkey and Ukraine as one of the impediments to more extensive reliance on CJEU case law.128 This impediment could be overcome if translations of these cases, or monographs on EU law in the local language, were available, but often they are not.129 Another way to overcome the language barrier among judges is through judges’ legal assistants, who command EU languages and are well educated in EU law. However, no such assistants are available in the low-​impact countries, nor in most of the other countries, either.130 One notable exception is the EAEU, where the judges are assisted by legal advisors (both personal advisors and advisors within the Secretariat of the Court), many of whom are scholars experienced in EU law.131 It is likely that it is these advisors that are 123 One notable example of this effect is the EU-​compatible rulings of the Trade Mark Registrars in Israel. See Chapter 12 in this volume by Arie Reich, p 288. 124 On Israel, see ibid p279; on Russia, see Chapter 7 in this volume by Paul Kalinichenko p 150. Tunisia seems to be an exception to this rule. According to Elbalti in Chapter 14 of this volume, p 343, the Tunisian courts are open to comparative law and do cite foreign case law, but still the citation rate of CJEU cases is very low. However, citation of foreign legal sources is clearly dominated by French law, and it seems that French law is ‘crowding out’ any other law, in particular EU law, which is wrongly perceived as not relevant to Tunisian legal problems (Elbalti ibid). 125 See Chapter 5 in this volume by Francesco Maiani, p 89. 126 On Armenia, see Chapter  9 in this volume by Narine Ghazaryan, p 211; on Azerbaijan, see Chapter 10 by Azar Aliyev, p 227; on Jordan, see Chapter 13 in this volume by Abdullah Nawafleh, p 317. 127 On Georgia, see Chapter 9 in this volume by Gaga Gabrichidze, p 255; on Russia, see Chapter 7 in this volume by Paul Kalinichenko, p 148. 128 See Chapter 6 in this volume by Ulas Karan, p 136; also Chapter 8 in this volume by Roman Petrov, p 189. 129 For instance, Ghazaryan writes that there is not even one Armenian source on EU law in existence (see Chapter 9 in this volume by Narine Ghazaryan, p 212). 130 See, for instance, the situation in Turkey (Chapter 6 in this volume by Ulas Karan, p 138), 131 See Chapter 4 in this volume by Maksim Karliuk, p 58.

SUMMARY AND ANALYSIS OF FINDINGS  377 responsible for the high citation rates we have found in judgments of the EAEU court. In Israel, too, judges—​especially Supreme Court judges—​are assisted by well-​educated legal clerks, even in some cases by foreign lawyers from Europe and North-​America, who can perform comparative law research for them.132 In Israel, almost all of the judges have a good command of English, so there is no language barrier there. Needless to say, the same applies to Switzerland, whose official languages (German, French, and Italian) also happen to be official EU languages, and whose judges also have a good command of English.133 Finally, we need to discuss the impact of legal education and judicial training in EU law on CJEU citation patterns. The lack of courses on EU law in law schools and lack of judicial training in this field are not surprisingly found in all four of the low-​impact jurisdictions, in particular Armenia, Azerbaijan, and Jordan.134 In these countries, EU law is not taught in the local law schools, and although there is judicial training, some of it even EU-​funded, it is not devoted to teaching local judges about EU law or CJEU decisions. Karan also attributes the fact that there are not more CJEU citations by Turkish courts to the lack of education in EU law, to the point that ‘EU law [is] one of the least known fields of law among Turkish lawyers.’135 On the opposite end stands Switzerland, where EU law is taught in most law faculties as a mandatory subject.136 The SFC also has regular opportunities to meet with CJEU judges in various fora and to exchange views with them on CJEU case law and other issues on their agenda.137 Also now in Ukraine, as part of the EU-​oriented policies of the current government, EU law forms a mandatory part of the law curriculum in many law faculties, and Ukrainian judges—​especially administrative judges—​take part in numerous expert meetings and training courses wherein they are introduced to the most contemporary ECtHR and CJEU judgments that are relevant for Ukraine.138 This serves to explain why Ukrainian administrative judges have pioneered—​and are still among the leaders of—​application of the EU acquis within the Ukrainian judiciary.139 Likewise, in Georgia it was found that there has been much judicial training in EU law, but mainly in competition law, which could explain the high rate of CJEU citations in this field.140 132 See Chapter 12 in this volume by Arie Reich, p 270. 133 See Chapter 5 in this volume by Francesco Maiani, p 87. 134 For Armenia, see Chapter  9 in this volume by Narine Ghazaryan, p 210; for Azerbaijan, see Chapter 10 in this volume by Azar Aliyev, p 231; for Jordan, see Chapter 13 in this volume by Abdullan Nawafleh, p 317; for Tunisia, see Chapter 14 in this volume by Béligh Elbalti, p 342. 135 See Chapter 6 in this volume by Ulas Karan, p 137. 136 See Chapter 5 in this volume by Francesco Maiani, p 88. 137 ibid. 138 The EU Delegation in Ukraine, the Council of Europe Office in Ukraine, and embassies of some EU Member States support and sponsor regular training on CJEU and ECtHR case law for the Ukrainian judiciary; for instance, case law of the CJEU relevant for the application and implementation of the EU–​ Ukraine Association Agreement was summarized and translated into Ukrainian under the EU-​funded project ‘Association4U’ accessed 7 May 2020. 139 See Chapter 8 in this volume by Roman Petrov, p 196. 140 See Chapter 11 in this volume by Gaga Gabrichidze, p 255.

378  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

D.  The Place of the Project in Research on the External Reach of European Union Law 1.  CJEU citations, the Brussels Effect, and territorial extension EU law can be ‘exported’ to non-​members of the EU through various mechanisms. One type of mechanism is through a mutual and formal agreement between a non-​ member country and the EU in which the former commits itself to adopt EU law, or at least to approximate its laws and regulations to those of the EU. Such agreements—​ discussed in section C above—​can often be found as part of association agreements, or lesser forms of trade and economic bilateral agreements, in various shapes and forms. Other types of mechanism are more unilateral and spontaneous. They are at the forefront of the current research. Joanne Scott141 has introduced a powerful distinction between extraterritoriality and territorial extension. Together with Anu Bradford’s ‘Brussels Effect’142 the now threefold distinction dominates the discourse on unilateral mechanisms of the EU to extend the geographical reach of EU law. Extraterritoriality refers to the rather rare application of EU law beyond its borders, triggered by something other than a territorial connection with the EU. Territorial extension refers to the manifold situations in which there is a territorial connection to the EU and where the relevant EU rules are applied to foreign conduct because of this connection to the EU. An abundant set of EU laws and CJEU judgments has attracted ever stronger attention, which could by and large be understood as variations of territorial extension.143 By comparison, the Brussels Effect describes situations in which third countries decide to over-​comply with EU law by conforming to EU standards even if not legally required to do so. Initially Anu Bradford focused on EU competition law, environmental protection, and data protection, as well as health and safety. The borderlines between territorial extension and the Brussels Effect in particular are far from clear. In section C of her chapter, Scott goes deeper into what territorial extension might mean and distinguishes between the transaction level, the firm/​company level, and the country level (Table 2.4). We will not embark on a more theoretical or conceptual debate on the link and potential overlaps between

141 Chapter 2, p 16, more comprehensively Joanne Scott, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 Am J Comp L 87. 142 Anu Bradford, The Brussels Effect, How the European Union Rules the World (OUP 2020); Anu Bradford ‘The Brussels Effect’ (2012) 107 Nw U L Rev 1. 143 Marise Cremona and Joanne Scott (eds) EU Law beyond EU Borders: The Extraterritorial Reach of EU Law (OUP 2019); Marise Cremona and Hans-​W. Micklitz (eds), Private Law in the External Dimension of the EU (OUP 2016). It would be worth investigating whether the CJEU creates territorial extension, as opposed to the legislature, or quite the opposite in line with what the legislature or the executive does.

SUMMARY AND ANALYSIS OF FINDINGS  379 these three concepts but, instead, use them rather pragmatically in order to place the current book into ongoing research on the external reach of EU law.144 The perspective and the purpose of the contributions forming an integral part of the book do not start from the threefold conceptual distinction. Instead, the contributions focus first on if, how, when, where, and why national courts in the neighbourhood of the EU are referring to CJEU judgments, and to what extent CJEU judgments have influenced their rulings. Second, such an analysis requires embedding analysis of the national courts into the type of relations that neighbouring countries have with the EU. A third layer, connected to the other two, is to what extent CJEU judgments have influenced regulators in these neighbourhood countries, even outside or beyond a bilateral agreement. The contributions provide an analysis of the type of international relations, the degree of approximation through harmonization of legal rules, and the degree to which national courts and competition authorities engage with the CJEU and refer to CJEU judgments in their daily practice. The opening towards competition law authorities was a pragmatic decision, based on the findings along the lines of research standing behind the book and which was performed by the current reporters. The contributions do not investigate other potential regulatory agencies which might be open towards CJEU practice, such as in telecommunications, energy, finance, or transport. The eleven jurisdictions and the EU are tied together through international trade agreements.145 These international agreements establish a territorial connection between the EU and the eleven jurisdictions. However, this territorial connection is based on politics. The agreements do not result from trade practices between companies located in the EU and the eleven jurisdictions. The agreements are meant to enhance trade and to intensify the economic ties between the EU and the eleven jurisdictions within a commonly agreed legal framework. These agreements influence the extent, the role, and the function of potential references to the CJEU in national courts in diverse ways. One might assume that the number of references in national courts increases with the strength of bilateral relations; indeed, our findings tend to confirm this assumption. One might equally assume that the role of the national courts differs according to the type and intensity of the bilateral agreement—​another assumption that is by and large confirmed by our findings. Last but not least, the function of national courts in this regard might depend on the content included in the bilateral trade agreement; for example, whether the agreement covers trade only or also includes non-​economic policies.

144 The final conference of the Finland Distinguished Professor Project on the External dimension of European Regulatory Private Law, due to be held in September 2020 in Helsinki is meant inter alia to deepen the link between territorial extension and the Brussels Effect. 145 One of the eleven jurisdictions covered in the book is the Eurasian Economic Union (EAEU). While this union as such does not have a trade agreement with the EU, all five of its members do have such agreements. Also, as pointed out above, the EAEU is to a large extent modelled after the EU.

380  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES In her opening contribution146 to this book, Joanne Scott analyses in Table 2.1 the category of agreement and the respective countries, in Table 2.2 the authority conferred on the CJEU in bilateral agreements with neighbouring countries, and in Table 2.3 the role of the CJEU in sectoral agreements concluded by the EU with its neighbouring countries. The perspective differs from that of the eleven contributions that focus on national courts’ preparedness and attitudes towards engaging with the CJEU through references in national judgments. Joanne Scott’s analysis of the relevant case law of the CJEU focuses on territorial extension. It shows that the external impact of CJEU judgments should be classified at the firm/​company level in the fields of competition, safety, environmental protection, and data protection and at the country level in the fields of animal welfare and data protection. The contributions to this book do not allow conclusions to be drawn on whether a correlation exists between the preparedness of the CJEU to extend the reach of EU law and the type of international relations the EU maintains with the country where the respective company is located. Scott’s analysis provides a sophisticated picture. The CJEU interpreted the data protection directive as giving rise to quite strict country-​level extension.147 This suggests that the CJEU follows the legislature. Overall, it looks as if the CJEU is more firm-​or company-​oriented than country-​oriented. This approach seems wise, as the CJEU thereby avoids having to blame or praise particular countries. Translated into policy terms, the CJEU seems to be unilaterally promoting outwards a competitive market order, as well as particular sensitive, non-​economic policies to which the EU has subscribed and which are suggested as forming part of the European identity148 as perceived from the outside. How, then, could the research documented in the eleven contributions to the book be located in the threefold distinction on the external reach of EU law? Extraterritoriality can be excluded straight away, as the research emphasizes a politically designed territorial connection. It appears that most of the instances where courts in neighbouring countries refer to the CJEU are examples of the Brussels Effect. Whether or not national courts are legally required to engage with the judgments of the CJEU is not decisive, perhaps with the exception of Switzerland. Rather, the national courts follow the CJEU because it represents good law (‘best practice’), or because the national court considers it prudent and efficient that their laws in this specific field should be aligned and harmonized with EU law.

146 Chapter 2, p 16. 147 Case C-​362/​14 Maximillian Schrems v Data Protection Commissioner [2015] (ECLI:EU:C: 2015:650). 148 The Treaty of Lisbon has introduced ‘national identity’, which immediately triggers the question whether there is or can be a European identity. In our context, the perception from the outside matters, as well as the way the EU presents itself in its relationship with the outside world; see in particular Gráinne De Burca, ‘Europe’s Raison d’être’ in Dimitry Kochenov and Fabian Amtenbrink (eds), The European Union’s Shaping of the International Legal Order (CUP 2013) 21.

SUMMARY AND ANALYSIS OF FINDINGS  381 There are also some scarce examples of the CJEU exerting a Brussels Effect on triggering regulation. One such example is the impact of the Bosman case149 on Israeli competitive sporting regulation.150 Here, the external impact of this CJEU judgment was mediated via standards adopted by European sporting federations, which implemented the Bosman ruling by easing restrictions on the inclusion of foreign (EU) players in teams. Israeli sporting federations were only required to implement this rule when participating in European events, but nonetheless implemented it gradually in national sporting events as well. Similar effects seem to have occurred in some of the other jurisdictions.151 There are other examples in the fields of privacy protection and competition law.152 The Brussels Effect is legally embedded. The hypothesis we would like to defend is that there is a match between the spirit of bilateral international agreements and the national neighbouring courts with regard to the focus on market order building. This is the common ground on which the different actors are standing, the European and the neighbouring national judiciaries (including the competition authorities), as well as the EU and neighbouring countries. In a way, this is not really surprising as the EU is, and remains, first and foremost a supranational institution aimed at building first the Common Market, and since 1986 the Internal Market. The picture differs when it comes to the various policy areas which reach beyond the core of the market order. The respective competences were introduced in the Single European Act and triggered strong involvement by the EU in social policies, labour, social security, non-​discrimination, consumer, and environmental policy. These internal European policies match up with export to neighbouring countries only in so far as the bilateral agreements impose an obligation on these countries to approximate their legal system to EU standards on labour, social security, non-​discrimination, consumer, and environmental protection. The political implications are evident. The focus on the market allows the EU and neighbouring countries to leave aside more sensitive policy issues beyond the market and to focus on what is in the mutual interest of both sides—​the efficient exchange of goods and services. Whenever the CJEU unilaterally stretches the reach of EU law irrespective of the level of territorial extension (transaction, firm/​company-​level, or country level) in health and safety, animal welfare, environmental protection, and data protection, it forestalls a development which is not yet politically anchored in most of the bilateral international agreements under scrutiny. If national courts are ready to engage with CJEU judgments outside

149 Case C-​415/​93 Union royale belge des sociétés de football association ASBL v Jean-​Marc Bosman, Royal club liégeois SA v Jean-​Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-​Marc Bosman [1995] (ECLI:EU:C:1995:463). 150 See Chapter 12 in this volume by Arie Reich, p 265 at 299. 151 For instance, Turkey (see Chapter 6 in this volume by Ulas Karan, p 115 at 136) and Azerbaijan (see Chapter 10 in this volume by Azar Aliyev, p 220 at 239). 152 See Chapter 12 in this volume by Arie Reich, p 265 at 287.

382  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES and beyond trade-​focused bilateral agreements in labour, social security, non-​ discrimination, consumer protection, environmental protection, and data protection, the Brussels Effect is even more obvious. It appears that both environmental and data protection belong to this category of CJEU activism.

2.  The EU as a neoliberal hegemon and/​or gentle civilizer In order to understand the role of the EU, one of the present authors153 has introduced the distinction between the EU as a ‘neo-​liberal’ hegemon and/​or as a ‘gentle civilizer’.154 The ‘and’ between the two poles matters, as the EU might be both a neo-​liberal hegemon promoting a market order and a civil hegemon promoting a particular Western understanding of the social order (labour rights, consumer rights) and the political order (fundamental rights and democracy). The overall prejudice might be, not least in light of the Eastern European extension, that the EU promotes a market order, but does not do enough to strengthen social regulation, let alone fundamental rights and democracy. National courts focus in their references clearly on CJEU judgments stemming from the market order. Occasionally, they refer to the CJEU in the field of social rights. One notable example is the extensive reliance by Ukrainian courts on the van Duyn judgment of the CJEU155 in thousands of ‘Chernobyl social protection cases’.156 Another is the reliance of the Israeli Supreme Court on the Marshall case157 of the CJEU when ruling that the mandatory retirement age for women that was earlier than that of men constitutes discrimination on grounds of gender.158 However, when it comes to politically highly sensitive issues, the ‘Strasbourg Effect’ seems to prevail over the Brussels Effect; that is to say, the national courts refer to the ECtHR instead of the CJEU. The eleven contributions do not offer a systematic picture though, as we did not aim to compare the CJEU with the ECtHR references in national courts. Neo-​liberalism, hegemon, and civilization are broad and complicated categories, which deserve at least some clarification in order to be made applicable

153 Hans-​W. Micklitz, ‘The Role of the EU in the External Reach of Regulatory Private Law—​Gentle Civilizer or Neoliberal Hegemon? An Epilogue’ in Marta Cantero Gamito and Hans-​W. Micklitz (eds), The Role of the EU in Transnational Legal Ordering: Standards, Contracts and Codes (Elgar 2020) 298‒320. 154 Martti Koskenniemi, ‘The Gentle Civilizer of Nations:  The Rise and Fall of International Law 1870–​1960’, Hersch Lauterpacht Memorial Lectures, Band 14, 2010. 155 See van Duyn v Home Office (n 13). 156 See Chapter 8 in this volume by Roman Petrov, p 173 at 190. Based on the principles of legal certainty and legitimate expectations embedded in the van Duyn case, the Ukrainian courts found a basis for affirming the rights of the disabled to claim continued social and financial assistance from the state. 157 Case 152/​84 MH Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) [1986] ECR I-​723. 158 See Chapter 12 in this volume by Arie Reich, p 265 at 290–292.

SUMMARY AND ANALYSIS OF FINDINGS  383 in analysis of the contributions. Neo-​liberalism comes in many variations.159 A strong strand of critique is voiced against European neo-​liberalism, which can be roughly equated with the transformation and/​or abolition of the achievements of the Western welfare state and the elimination of social and labour rights through non-​democratic political decisions made in international fora by governments and companies outside national democratic control. In this view, the EU is replacing solidarity through overemphasis on individual autonomy and individual responsibility.160 Neo-​liberal market rationality is claimed to prevail over social values and social rights.161 Interestingly, critique is focusing on the inward perspective, on how the EU is negatively affecting the social order in the Member States.162 In this perspective, the EU can rarely appear as anything other than a neo-​liberal hegemon that promotes, if not imposes, a competitive market order via international agreements with neighbouring countries, thereby neglecting social and labour rights. In foro interno in foro externo—​ what is true of the Internal Market must also be true of the spirit that governs relations with neighbouring countries and the bilateral trade agreements concluded with them. There, the EU is assumed—​or must be assumed—​to use its political and economic power to the benefit of the EU itself, to the advantage of Western European companies, and to the detriment of the people in neighbouring countries. Such an understanding seems to exclude the idea that a market order may have a civilizing effect, as it insists on the ‘neo’ in ‘neo-​liberal’ but does not discuss ‘liberal’ in the meaning given to it in political philosophy and private law theory.163 The idea of the civilizing effect of a market order—​if there is one at all—​sheds light on the second and even more complicated denominator, namely civilization, or the idea of the EU as a civilizer. Neo-​liberalism is the main target of intellectual critique, not only of the European legal order, but also of the global legal order, and stands at the forefront of social science research. The role of the EU in building a genuine European ‘civil’ society and its impact on national civil societies remains by and large under-​researched in the discourse about the achievements and non-​ achievements of the EU. The critique levelled at neo-​liberal economic policy goes all too often hand in hand with consequential conclusions on the type of society

159 There is certainly more to say on the variations of neoliberalism: eg William Davies, The Limits of Neoliberalism: Authority, Sovereignty and the Logic of Competition (Sage 2014). 160 Most outspoken, Wolfgang Streeck, How Will Capitalism End? Essays on a Failing System (Verso 2016); William Streeck, ‘The EU is an Empire’, an interview accessed 7 May  2020. 161 Marija Bartl, ‘Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political’ (2015) 21 Eur Law J 572‒98 162 Contributions in Dimitry Kochenov, Gráinne de Búrca, and Andrew Williams (eds), Europe’s Justice Deficit? (Hart 2016); Giacomo Tagiuri, ‘The Cultural Implications of Market Regulation: Does EU Law Destroy the Texture of National Life?’, PhD thesis, Bocconi University, Mailand 2019. 163 Hanoch Dagan and Michael Heller, The Choice Theory of Contracts (CUP 2017).

384  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES the EU is promoting.164 There is amazingly little sociological analysis on what kind of society the EU is promoting and whether the EU is promoting values that the Member States have neglected.165 Be that as it may, Europeans who refer to the EU as a civilizer in external relations, whether the claimed civilizing effects result from the promoted market order or whether they are related to social values outside the market order, are immediately confronted with claims of European colonialism and find themselves on slippery historical, political, and economic ground. However, we use civilization in the meaning of Elias,166 who interpreted civilization as an analytical frame, not to insinuate European superiority but to show that Western culture has developed particularly sophisticated, concise, comprehensive, and rigid institutions apparent, for instance, in their decisive technological advances. Does this understanding help to overcome reservations against a Western European legal167 culture? Probably not. Here, much more socio-​legal and sociological research is urgently needed. The contributions highlight this necessity but do not really provide the evidence which would be needed to go beyond rather crude assumptions. If the export of civilization is translated into promotion of particular policy objectives, be they economic (market order as an achievement of civilization) or non-​economic (human rights, democracy, effective justice systems, environmental protection, and data protection and so on as achievements of Western culture), there is immediately an element of hegemony, however ‘gentle’ it might be. There is certainly no room here to discuss the ambiguities of hegemonic civilization in more detail. At the end of the day, it all boils down to the question whether the export of civilization can be legitimized. To take cosmetics as an illustration, the CJEU168 uses the argument that the objective of the relevant EU directive would be undermined if companies could simply rely on offshore production where animal testing is permitted, but still sell in the EU market. This argument could easily be 164 Gareth T Davies, ‘Freedom of Contract and the Horizontal Effect of Free Movement Law’ in Dorota Leczykiewicz and Stephen Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Hart 2013) 53‒70. 165 A possible point of reference would be the role and function of non-​discrimination in the affirmative: Richard Münch, ‘Constructing a European Society by Jurisdiction’ (2008) 14 Eur Law J 519‒41; Richard Münch European Governmentality. The Liberal Drift of Multilevel Governance (Routledge 2010) and quite critical on the role on non-​discrimination law: Alexander Somek, Engineering Equality. An Essay on European Anti-​Discrimination Law (OUP 2011); Alexander Somek ‘The Darling Dogma of Bourgeois Europeanists’ (2014) 20 Eur Law J 688‒712; Civil Law Forum for South East Europe, Collection of Studies and Analyses Frist Regional Conference Cavat, Deutscher Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH Offener Regionalfonds für Südosteuropa—​Rechtsforum, vol I-​III (Civil Law Forum for South East Europe 2010) (the publications are in English). 166 Norbert Elias, Über den Prozess der Zivilisation (1939) (translated into English, Wiley 1969/​1982). 167 On legal culture, Geneviève Helleringer and Kai Peter Purnhagen (eds), Towards a European Legal Culture (Beck; Hart; Nomos 2014; Franz Wieacker, ‘Foundations of European Legal Culture’ (1990) 38 Am J Comp L 1‒29. 168 Case C-​592/​14 European Federation of Cosmetics Ingredients v Secretary of State for Business, Innovation & Skills [2016] (ECLI:EU:C:2016:703) (comments on the judgment in Chapter 2 of this volume by Joanne Scott in her introduction).

SUMMARY AND ANALYSIS OF FINDINGS  385 applied with regard to offshore testing of pharmaceuticals, which is a particularly sensitive field. Companies have only the choice between respecting the EU rules wherever they produce their cosmetics or being barred from access to the Internal Market. What looks legitimate in the eyes of the CJEU may not look legitimate in countries that have a different understanding of animal welfare versus the importance of developing life-​saving medicines. The external reach of the EU is much easier to legitimize as far as the EU promotes internationally agreed policy objectives, such as the United Nations Sustainable Development Goals,169 which the United Nations adopted unanimously. At first sight, it appears that environmental protection and health and safety of the people belong to these common internationally agreed goals, whereas the same does not hold true with regard to data protection or animal welfare.170 But when is an international convention or an international policy goal to be regarded as ‘international’ in the truly universal sense?171 What kind of criteria of participation and of voting need to be respected and how concrete and precise must the rule and policy be so as to be used by the CJEU in its case law on territorial extension and by the EU in adopting legislative measures? It seems that the search for legitimacy is a rather shaky bridge over troubled waters. The idea of a competitive market order dominates the EU Internal Market. There are two dimensions to be kept distinct: the first is whether a competitive market order embraces a civilizing effect and, if so, under what conditions. The second relates to the question whether there is an international agreement on promotion of a competitive market order that relies on an equally strong common political will such as the UN Sustainable Development Goals. The post-​Second World War economic world order, the General Agreement on Tariffs and Trade (GATT), the Bretton Woods Agreement, and the International Monetary Fund (IMF)—​all are products of the Western world. The 1994 revision of the World Trade Organization (WTO) led 164 states to subscribe to rule-​based gradual trade liberalization. Whether WTO/​Agreement on Trade-​Related Aspects of Intellectual Property Rights (TRIPS) could be understood as a market order based on competition has been subject to fierce debate. WTO/​TRIPS does not oblige states to introduce competition law rules.172 Nowadays, even rule-​based trade liberalization enshrined in a multilateral agreement is under pressure: from the Global South since the call for a ‘New International Economic Order’ after the end 169 See accessed 7 May 2020. 170 In a similar vein, Amicus Curiae Brief by the European Commission on Behalf of the European Commission on Behalf of the European Union in Support of Neither Party in Kiobel and others v Royal Dutch Petroleum and others. 171 Anthea Roberts, Is International Law International? (OUP 2017). 172 For instance, Chris Noonan, The Emerging Principles of International Competition Law (OUP 2008); Jurgen Basedow, Antitrust or Competition Law, International, published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfram, Oxford Public International law(OUP 2014).

386  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES of colonialism in 1974,173 and from the Global North through the rise of bilateral trade agreements that undermine the idea of a common non-​discriminatory international economic order.174 The result is a network of bilateral agreements that the United States, the EU, China, and Japan engage in, each promoting its own concept of regulated free trade, more or less openly linked to clearly set political goals.175 As multilateralism gradually falls apart, the different world powers engage de facto in competition between various types of market order, state-​run market orders, and more or less (neo)-​liberal market orders. Is this competition to the benefit of the neighbouring countries of the EU? This would require that they can freely choose the model that best fits their needs—​but whose needs, those of peoples, of companies, or of the respective acting governments? Our hypothesis is that the EU relies on its own competitive market order that is promoted among, if not imposed on, neighbouring countries. The starting point of the analysis must be the rationale and the rationality of the Internal Market—​ which is composed of a combination of market freedoms, competition, and social regulation.176 Here we are back to neo-​liberalism and the critique voiced against the Internal Market which never had, or had lost, its social face, depending on one’s standpoint. If the EU can be reduced to a market order where social regulation remains symbolic, it is hard to imagine that it can deliver to the outside world more than what it represents for the EU Member States and their citizens. The yardstick for measuring the civilizing role of the EU is rather simple: the assessment depends on the degree to which the EU promotes social regulation or limits itself to economic freedoms and competition. The consequences of such an observation and classification are ambiguous: the stronger the pressure by the EU to adopt at least internationally agreed social standards (if not internationally recognized human rights), the more the EU must be perceived as a hegemon—​and for good cause. This comes close to Kumm’s ‘Who is afraid of the Total Constitution’?177 But here Scott’s178 strong argument ties in. If the EU refrains from such protective regulation beyond its own territory, it is morally complicit in all sorts of social wrongdoing in

173 See accessed 7 May 2020. 174 For a discussion of the pros and cons of this development, see Arie Reich, ‘Bilateralism v Multilateralism in International Economic Law: Applying the Principle of Subsidiarity’ (2010) 60 UTLJ 263‒87. 175 A case in point is the different types of bilateral investment agreements which are concluded by the United States in comparison to those of China. 176 There is abundant literature, which is near to impossible to master:  Stephen Weatherill, The Internal Market as a Legal Concept (OUP 2017). 177 Matthias Kumm, ‘Who Is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’ (1 April 2006) 7(4) German Law Journal 341–​69 accessed 7 May 2020. 178 ‘The Global Reach of EU Law’ in Cremona and Scott (n 143), 21‒63.

SUMMARY AND ANALYSIS OF FINDINGS  387 other countries, either through standing idly by or by consuming the fruits of such wrongdoing. One question remains open:  whether a market order may bear a civilizing element at all or whether the civilizing effect depends on the type of market order and the degree to which the market order is legally and socially embedded. Ordo-​ liberalism relies on the ‘private law society’ (Privatrechtsgesellschaft), in which private autonomy and private liberties are guaranteed through the domesticizing power of competition law. Those who subscribe to ordo-​liberalism insist on the civilizing dimension of a market order, but doubt whether the EU after the Single European Act can still be understood as promoting ordo-​liberalism.179 The reasoning transferred to the international level implies the anchoring of competition in a multilateral international convention and—​or at least in—​bilateral agreements. The first is highly debated; the second depends on the role that competition law and competition policy plays in the international agreements of the EU with neighbouring countries. It is worth remembering that one of the key fields in which there is territorial extension (Scott) and or where the Brussels Effect (Bradford) is prominent is the CJEU’s unilateralism enshrined in the competition law doctrine of ‘a single economic entity’, whereby decisive influence is presumed to exist by a (non-​EU) parent company on its fully owned (EU) subsidiary.180 Provided the market order contains a civilizing effect, and provided the civilizing effect is bound to competition, the CJEU’s unilateralism and the EU’s policy of making competition an integral part of bilateral trade agreements with neighbouring countries could be understood as some sort of a civilizer. However, the civilizing effect is bound to so many ‘if ’s and when’s’ that the promoted market order might neither meet the requirements of ordo-​liberalism nor the requirements of political liberalism. The eleven country reports underpin the importance of competition law and policy and the role that competition agencies are playing. It would be useful to know whether the competition authorities in neighbouring countries understand themselves as contributors to the civilization of their own countries and whether they comprehend the input of EU competition law as backing their role as potential civilizers, not to mention how the citizens of these countries perceive competition.

179 Ernst J Mestmäcker, ‘Auf dem Wege zu einer Ordnungspolitik für Europa’ in Ernst-​J Mestmäcker, Hans Möller, and Hans-​Peter Schwartz (eds), Eine Ordnungspolitik für Europa. Festschrift für Hans vd Groeben (Nomos-​Verlagsgesellschaft 1987) 9‒49; Christian Joerges, ‘What is Left of the European Economic Constitution? A Melancholic Eulogy’ (2005) EL Rev 30 461‒89: both are discussed by Hans-​ W. Micklitz, in Stefan Grundmann, Hans-​W. Micklitz, and Moritz Renner, New Private Law Theory—A Pluralist Approach (CUP 2020). 180 As analysed by Joanne Scott in Chapter 2 of this volume, p 16 at 31 under reference to Case 48/​69, Imperial Chemical Industries (ICI) v Commission [1972] (ECLI:EU:C:1972:70). For a full analysis of the external dimension of EU competition law, see Giorgio Monti, ‘The Global Reach of EU Competition Law’ in Cremona and Scott (n 143), 174‒96.

388  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES

3.  The neighbouring jurisdictions, the CJEU, and the EU In what follows, we take for granted that the national neighbouring judiciaries are operating under the shadow of a particular bilateral international agreement, independent of the degree of dependence, the degree of ‘obligation’, ‘precision’, and ‘delegation’.181 This does not mean that the type of agreement and the degree of economic and political dependence does not matter. Indeed, quite the contrary seems to be true: a loose correlation seems to apply between, on the one hand, the degree of economic and political dependence as reflected in the different types of bilateral trade agreements and, on the other, the inclination of national judiciaries to refer to the CJEU in their reasoning. However, a word of caution is needed, as evidence points in various directions: national judiciaries might increase their awareness of the CJEU in a kind of ‘anticipatory obedience’; they might defend their independence even when their country is economically and politically dependent, or they might strongly engage with the CJEU out of a position of political strength. The diverse contributions indicate that the spirit of bilateral relations is mirrored in the attitude of national neighbouring judiciaries. In order to locate the jurisdictions, we undertake the risky task of grouping different countries together and putting a label on them. This is different from the analysis used so far, which relates to the number of references and their potential impact on national jurisdictions. The grouping is built on the economic, political, and legal circumstances that determine the type of relationship the EU and neighbouring countries conclude and which set a framework in which both the CJEU and national courts operate. The first group is composed of Israel, Russia, Switzerland, and Turkey. These countries are economically and politically strong enough to position themselves towards the EU out of a position of strength. Maybe the best characterization is that these four countries and the EU are mutually dependent on each other in trade and politics. This is what unites them, despite the very different legal relationship they maintain with the EU. Their economic and political weight enables them to keep a certain distance from the EU, despite—​or perhaps even because of—​the strong ties they entertain with the EU. Each is powerful enough not to turn into a mere rule-​taker. Applying to the EU for membership implies taking over more than the famous 80,000 pages of the EU acquis. The first three never seriously considered joining the EU. Switzerland even voted against joining the European Economic Area, although it voluntarily seeks to adjust its legal system to the EU where it feels the economic and political need. Turkey has applied for membership

181 In Chapter 2 of this volume, p 16 at 19, Joanne Scott refers to Kenneth W Abbott and others, ‘The Concept of Legalization’ (2000) 54 International Organizations 401 and the critique by Martha Finnemoore and Stephen J Toope, ‘Alternatives to Legalization:  Richer Views of Law and Politics’ (2001) 55 Int’l Org 743.

SUMMARY AND ANALYSIS OF FINDINGS  389 and has been offered the opportunity to become a Member State, subject to conditions which Turkey realistically cannot meet in the near and further future. Over the past decade, Turkey has readjusted its position to the EU; the formal application no longer determines Turkish politics. The attempt to adjust the legal system to European standards is gradually evaporating. That is why it seems justified to understand Turkey as being part of the first group. As to the status of legal relations and when we take into account the political realities of the relationship between the EU and these four countries, the ‘best endeavours’ formula that these countries will make to adjust their legal orders to the EU legal order nicely expresses that there is no hierarchy or political dependency, but a partnership on an equal footing. Whilst the court rulings of the CJEU are overall understood as a source of international or comparative law to which the national courts refer as ‘best practice’, there are substantial differences between the countries. The national courts of Israel, Russia, and Turkey seem to be ready to refer to the CJEU in terms of competition and intellectual property rights and occasionally also of labour and social rights.182 The emphasis is clearly on the market and the economic order. Switzerland is a special case. The Swiss courts have developed the doctrine of EU-​compatible interpretation. This is a kind of smooth adjustment below the level of formal politically sensitive adaptation of the Swiss legal system to the European legal system. Two fields of CJEU cases are dominant in the Swiss jurisdiction outside and beyond competition and property rights: international private law and migration. Switzerland is part of the Lugano Convention, which defines common standards for the application of international private law. In the EU and around the world, Swiss private law is one of the three prime legal orders that private companies prefer to choose.183 Therefore Switzerland must keep a close eye on the CJEU in order to preserve the integrity of Swiss private law. The other dominant field is migration, which is due to the geographic position of Switzerland and its attractiveness for EU workers. The second group is composed of Georgia, Moldova (no contribution in the book) and Ukraine. All three belonged to the Union of Soviet Socialist Republics (USSR). Since they gained independence in the 1990s, these countries have been struggling economically and politically to position themselves between Russia, on the one hand, and the EU, on the other. All three have chosen the European path. The current Association Agreements are the result of a gradual approximation process, often triggered by major political events in these countries. The three

182 See the country-​by-​country analysis above for more details. 183 Stefan Vogenauer and Stephen Weatherill, ‘The European Community’s Competence to Pursue the Harmonisation of Contract Law—​An Empirical Contribution to the Debate’ in Stefan Vogenauer and Stephen Weatherill (eds), Harmonisation of European Contract Law:  Implications for European Private Laws, Business and Legal Practice (Hart 2006) 105; Vanessa Mak, ‘Private Actors as Norm-​ Setters through Choice-​of-​Law:  the Limits of Regulatory Competition’ (2015) Tilburg Private Law Working Paper Series no 02/​2015.

390  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES are not operating out of a position of economic and political strength. They seek economic and political support from the EU in building their economies and their democracies. They hope to join the EU as Member States, although they are aware of the barriers and the uncertainties in the light of France’s rejection of suggestions that Eastern Partnership countries might become Member States.184 The three Association Agreements follow the same scenario. Georgia, Moldova, and Ukraine are not only required to establish a competitive market economy along the lines of the Internal Market philosophy, but they also have to take over a vast amount of EU economic regulation and social regulation on health and safety, environmental protection, and consumer protection. Contrary to all other countries presented in the book, these three are confronted with a large set of EU rules—​on the market and on society at large. The EU insists that further progress of cooperation depends on legislative progress. What can be observed in these three countries is a déja-​vu from the process of Eastern enlargement. Whole ministries turn into law-​producing factories, where the available workforce is more or less absorbed by translating EU regulations and EU directives into national law. One of the present authors has participated in the approximation process not only in the Eastern enlargement but also in the transformation of Georgia into a market economy, combining economic freedoms with social regulation.185 The legal reference point is the approximation clause and the arbitration clause. These countries have to face—​in case of conflict—​the authority of the CJEU which is empowered to take binding decisions. Interestingly, the preparedness of the two national jurisdictions to refer to the CJEU differs. The Georgian courts refer to the CJEU in cases equally spread over competition, trade, but also corporate law, tax law, and consumer law.186 The number has increased slowly but steadily.187 However, the national competition authority uses CJEU arguments extensively in its transformation of the economy into a competitive order. The large number of references before the competition authorities is not reflected in an equally high number of references in court cases. In Ukraine, it is worth noting that the high administrative court has sent an non-binding letter instructing all administrative judges to take EU law into consideration.188 This is mirrored in a relatively large number of references in administrative law cases, whereas contrary to all other states, trade and commercial cases play a less important role. The bulk of the cases concern a single reference to van Duyn v Home Office 189 in post 184 See eg ‘New Europe’ (27 January 2020) accessed 7 May  2020. 185 Hans-​W. Micklitz, ‘Prologue: ‘Westernisation of the East and Easternisation of the West’ in Michal Bobek (ed), Central European Judges under the European Influence: The Transformative Power of the EU Revisited (Hart 2015) 1‒12. 186 See Chapter 11 in this volume by Gaga Gabrichidze, Table 11.2, p 241 at 250. 187 ibid Figure 11.1, p 241 at 249. 188 See Chapter 8 in this volume by Roman Petrov, p 173 at 191. 189 See van Duyn v Home Office (n 13).

SUMMARY AND ANALYSIS OF FINDINGS  391 Chernobyl litigation. The search for a common denominator leads to the strong role of the executive, which is pushing administrative judges and/​or competition law authorities to over-​comply with EU law. The third group is composed of Armenia and Azerbaijan. They can be joined together, despite their different stages of bilateral relations with the EU and despite their internal territorial conflicts. Both countries are squeezed between Russia and the EU. This is also true with regard to Georgia, Moldovia, and Ukraine, despite the formal Association Agreements they concluded with the EU. Whereas the three resisted the pressure and concluded agreements with the EU, Armenia shied away from coming closer to the EU and decided under the Russian threat to increase the gas price and to join the Eurasian Union. The EU adjusted the DCFTA—​which is part of the Association Agreement the EU concluded with the second group of countries—​to the particular situation of Armenia.190 The CEPA concluded in 2017 is a thin version of the DCFTA. Azerbaijan resisted pressure by Russia, but to some extent also that of the EU. Negotiations between the EU and Azerbaijan are in limbo. Azerbaijan is a rich oil country, which turns it much more into an economic partner, at least with regard to energy supply. Both countries are neither legally obliged to turn themselves into market economies, nor to take over European social regulation. The German Development Aid Agency (GIZ) is heavily engaged in that region of the world. Under advice, Azerbaijan (and also Georgia) adopted a civil code along the lines of Germany’s Bürgerliches Gesetzgebuch (Civil Code). The national courts of Armenia and Azerbaijan show limited willingness to refer to the CJEU. As their ties to the EU are rather thin, and as political willingness to come closer to the EU is equally limited, the national courts might only refer to the CJEU as best practice, for example when the CJEU provides solutions which might help to solve national conflicts. Otherwise it might be hard to explain why the national court in Armenia refers to retirement age and personal identification, whereas the national courts of Azerbaijan quote the CJEU in company law (Centros) and in abuse of rights.191 The only seemingly convincing explanation might be that the national courts were using the CJEU as a source of inspiration. The fourth group of neighbouring countries consists of the members of the Euro-​Med Partnership, except for Turkey and Israel.192 The book includes contributions from Jordan and Tunisia, but not from the other seven members. Our efforts to find contributors for these countries failed. In contrast to the above mentioned three groups, the relationship between the EU and these Euro-​Med countries remains rather loose and comparatively underdeveloped. The Euro-​Med Partnership Agreement sets a kind of framework which is then complemented by

190 See Chapter 9 in this volume by Narine Ghazaryan, p 199. 191 See the country summaries above for more details. 192 See accessed 7 May 2020.

392  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES country-​specific agreements that take into account existing economic and political particularities. This is exactly what happened in Jordan and Tunisia. To strengthen their engagement in line with the revised ENP, the EU and Jordan adopted the EU–​Jordan Partnership Priorities and the EU–​Jordan Compact 2016‒18. The Partnership is based on three themes:  strengthening cooperation on regional stability and security; supporting Jordan’s macroeconomic stability, social and economic development; and promoting good governance, the rule of law, democratic reform, and respect for human rights. The Jasmine Revolution of 2011 marked a turning point in relations between Tunisia and the EU. In 2012, Tunisia acquired the status of ‘Privileged Partner’, followed by a so-​called ‘Action Plan 2013‒2017’ for implementing the Partnership.193 Tunisia is engaged with the EU in negotiations for a DCFTA, though these have not yet come to a successful conclusion. One interesting proposal is revision of the chapter relating to competition law, which expressly refers to the case law of the CJEU as one of the sources of EU law to be applied in this field. The rather loose ties are reflected in the lack of references to the CJEU in the national courts of these countries. However, the reasons differ considerably. In Jordan, the language barrier seems to be a highly significant factor. CJEU judgments are not translated into Arabic and the national judges by and large lack the necessary language skills and legal education in EU law. This barrier does not exist in Tunisia, where the ties between France and Tunisia are still quite strong, and the legal system is close to the French legal system. Thus, while foreign judgments do play a role,194 if Tunisian judges refer to foreign judgments, they have in mind the French Cour de Cassation. We have suggested that in Tunisia a peculiar phenomenon is at play: French law is ‘crowding out’ EU law and French judgments are crowding out CJEU judgments. The former colonial power is still exercising its influence, and for Tunisian judges the reference point is not the CJEU, but rather the French Cour de Cassation. However, there is one particularity to be reported. The Competition Council of Tunisia is taking CJEU judgments into account and refers to them quite extensively in its legal opinions. The reason is probably because French competition law is strongly influenced by EU competition law, and hence when Tunisian judges and competition officials look to French law, they will also find CJEU judgments. The proposed chapter on competition law in the negotiations on the DCFTA could be understood as an incentive for the competent courts to deepen their engagement with the CJEU in the field of competition law.

193 See accessed 7 May  2020. 194 See above for the summary of Tunisia and the strong French impact.

SUMMARY AND ANALYSIS OF FINDINGS  393

4.  What role for the EU? Going back to the formula of the hegemon vs the civilizer, the countries under scrutiny offer a rather mixed picture. The book project puts the emphasis on the CJEU and the national courts in the eleven jurisdictions. The CJEU has set the tone in the relationship, although it does not seem to be aware of its role towards non-​EU members’ judiciaries.195 The CJEU is defending the integrity and the autonomy of the European legal order, thereby shielding the European legal order against foreign influence. This attitude implies that cooperation between courts is only thinkable if the national courts enjoy the necessary power to engage with the CJEU on an equal footing. Cooperation in that form can only be found with the national judiciaries of those countries which engage with the EU from a position of economic and political strength. In all other situations, the national courts are in a much more difficult situation. If bilateral agreements require approximation of the national legal system to the EU legal system, national courts might feel under pressure to look into the case law of the CJEU so as to avoid contradictions between the political commitment to approximate and national legal reality. On the other hand, national courts will have to defend their independence, a phenomenon which is well known from the courts of the EU Member States. The contributions reach beyond interaction between the courts in that they analyse the type of international agreement, the degree of obligation to approximate national laws, and the legal fields in which reforms are required. A relatively clear divide separates trade and competition on the one hand and social regulation on the other. The national courts are overall relatively well prepared to take the CJEU into account in terms of building a competitive market order. This also means that the CJEU is very much perceived as a ‘market court’. The same cannot be said with regard to all policy fields that reach beyond the market, let alone the areas of fundamental and human rights and democracy. The latter gap is partly filled by the ECtHR. The former gap—​the rather limited number of references in the field of social regulation (labour, environment, consumer, animal welfare) —​might exist for different reasons. It could be that the CJEU is not perceived as a prominent source of inspiration and that the national courts tend to define their own standards adapted to the national context. It could also be that approximation in these areas is not (yet) strong enough, so that CJEU judgments in these fields are not (yet) on the radar of the national judiciaries. Outside and beyond the type of relationship and the different legal fields, the CJEU might be perceived as an authority ready to tackle economically and politically sensitive issues which are of major concern for the citizens of these countries. We would like to mention again here two judgments: Bosman196 and Google

195

196

See contribution by former CJEU judge, Allan Rosas, in Chapter 3 of this volume, p 38. Bosman (n 149).

394  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES Spain.197 In Bosman, the CJEU liberalized the market for football players. The judgment affects many young players coming from neighbouring countries. Google Spain is different. Google Spain defines the relationship between the EU and the US-​based leading internet companies, an issue which is equally important for the EU Member States and for neighbouring countries. Some loose ends remain where further research is needed, and where the data collected do not suffice to provide convincing explanations. This is particularly true with regard to the finding of a correlation between the intensity of the relationship in judicial interactions between jurisdictions and the CJEU, on the one hand, and the relative economic and political power of the country concerned, on the other. For instance, how can the differences between Georgia and Ukraine be explained? Both combine an intensive relationship with relative economic weakness. Certainly, there are differences in the political weight of the two countries, but can the political weight explain why the stronger country is more willing to engage with the CJEU than the weaker country. Should it not be the other way around? Switzerland is another case where the suggested correlation needs to be refined. Switzerland has a strong economy. In contrast to Israel, Russia, and Turkey, the Swiss courts refer extensively to the CJEU. This suggests that intensity in economic relations may overcome the Swiss power position, as the CJEU is influential in these agreements too. Answers to questions of this kind require a deeper examination in the various fields where the courts interact.

E.  Conclusions and Policy Recommendations This research project has spanned more than three years of internal deliberations, selection and recruitment of scholars from many jurisdictions, formulation of research guidelines, and intensive discussion with colleagues from the eleven jurisdictions during two conferences, one organized at the University of Helsinki, the other in Florence at the European University Institute. Country reports and other contributions have undergone endless revisions and improvements, and issues have been discussed through extensive email exchange between the present authors and the other contributors. We have discovered that although export of the acquis to neighbouring countries has been on the EU agenda for many decades, the role of the courts in this endeavour—​both the EU’s own court, the CJEU, and those of neighbouring countries—​has been largely neglected. This is not at all on the minds of the judges in Luxembourg, and is quite overlooked by the European Commission, an attitude that seems to ignore the fact that it is not enough that certain EU rules will be transposed and incorporated into the written laws and 197 Case C-​131/​12, Google Spain SL, Google Inc v Agencia Española de Protección de Datos (AEPD) Mario Costeja González [2014] (ECLI:EU:C:2014:317).

SUMMARY AND ANALYSIS OF FINDINGS  395 regulations of neighbouring countries. If what is desired is actual harmonization of rules and standards, the rules need to be interpreted and implemented similarly to how they are interpreted and implemented in the EU. Otherwise, EU-​compatible regulations and laws will remain ‘law in the books’ and not ‘law in action’.198 The situation on the ground reflects this neglect. In four out of eleven jurisdictions examined, citation and reliance on the CJEU are practically non-​existent, even though these countries are all committed to legal approximation with the EU. In three other jurisdictions, the impact is only moderate, often less than the impact of courts from other foreign countries, where no obligation of legal approximation exists. Only four jurisdictions show a relatively high impact. This chapter has summarized the findings from the different jurisdictions, both on a country-​to-​country basis, and on a factor-​to-​factor basis. We have tried to understand why in some jurisdictions little or no CJEU impact has been detected, whereas in others awareness and willingness to refer to the CJEU and rely on its judgments is much higher. Based on our findings and observations, we have tried to deduce general conclusions regarding the factors at play. On that basis, we can now formulate some policy recommendations as to what could be done in order to enhance the role of the CJEU in the legal approximation project and to promote more actual harmonization. Our recommendations do not target particular countries. Rather they are directed at obvious deficits that function as access barriers, quite independently from deeper cultural and political reservations against referring to the CJEU. 1. The landmark judgments of the CJEU should be made available in the languages of the neighbouring countries. Of particular importance are translations into Arabic, Russian, and Turkish. 2. The EU is encouraged to promote and even to finance legal education in EU law starting from undergraduate level and for practicing lawyers, and to encourage the publication of legal literature on EU law in the local languages of the neighbouring countries. 3. The EU needs to invest in the judicial training of judges in the neighbouring countries, and to include EU law and CJEU judgments in this training. 4. Legal approximation provisions in bilateral agreements need to be strengthened and also to relate expressly to CJEU case law, both pre-​signature and post-​signature rulings and interpretations of the relevant acquis. These recommendations cannot be realized by the EU alone. The Member States and the neighbouring states should accept co-​responsibility. Reducing the barriers is a joint political task, assuming the political willingness to increase the 198 To paraphrase Roscoe Pound’s famous article ‘Law in Books, Law in Action’ (1910) 44 Am Law Rev 12.

396  THE IMPACT OF THE ECJ ON NEIGHBOURING COUNTRIES accessibility of EU law and the CJEU. One important move would be to grant some type of legal status within the domestic legal system to CJEU case law, in particular when related to EU norms that have been incorporated into domestic law. Moreover, neighbouring states need to invest in their judiciary in order to ensure the high quality and good legal education (in domestic, comparative, and international law) of their judges, as well as their independence.

Index Tables and figures are indicated by t and f following the page number Approximation of laws analysis of potential and actual impact  372–​4t Armenia  202–​5 Georgia  245–​7 instructions to researchers  11 Israel  273–​5 Jordan  315–​16 overview  17–​18 Russia  151–​8 Switzerland expanding network of agreements with EU  91–​4 general aspects  90–​1 unilateral alignment of Swiss law with EU law  94–​6 Tunisia  332–​3 Turkey  120–​4 Ukraine Common Foreign and Security Policy  178–​9 Constitutional provisions  179 effective implementation and application of AA  180–​1,  181–​3 EU–​Ukraine AA  177–​8 intergovernmental dispute settlement mechanism 183 international agreements  178 jurisdiction to interpret the EU acquis  183–​4 preliminary ruling procedure  183–​4 significant political, economic, and legal importance of AA  179–​80 uniform interpretation of legal norms  184–​5 Armenia analysis of potential and actual impact factors 368 future prospects for CJEU case law  213–​18 history of relations with EU  199–​201 judiciary  201–​2 lack of specific legal obligation to follow CJEU practice  209–​13 overview of EU–​Armenia Relations  202–​5

relative quantity and the impact of CJEU citations  365–​70 in search of an impact  205–​9 summary of findings  218–​19 Azerbaijan academic and legal education  231 citations extent of influence  237–​8 limited interaction  233 practice of competition authority  238 three decisions of Constitutional Court  234–​7 court system  225–​6 human rights  232 impact of CJEU on regulation  239 international territories  231–​2 judiciary Constitutional provisions  224–​5 mixture of post-​Soviet and Western European models  225 procedural difficulties  226–​7 reform initiatives  227–​8 legal system  220–​2,  228–​30 relations with EU  223–​4 relative quantity and the impact of CJEU citations  365–​70 summary of findings  239–​40 use of precedent decisions of national courts  232–​3 general rule  232 international and foreign jurisprudence 233   Brussels effect analysis of potential and actual impact  372–​4t conditions giving rise to Brussels effect  34–​6,  34t example of the de facto Brussels Effect  36 extraterritorial influence of EU law  17–​18 ‘global reach’ of EU law  27 Israel  301, 361 summary of findings  351, 380–​3, 387 Switzerland 113

398 Index Case law see citation of CJEU decisions; External case law Citation of CJEU decisions Armenia future prospects for CJEU case law  213–​18 lack of specific legal obligation to follow CJEU practice  209–​13 in search of an impact  205–​9 Azerbaijan extent of influence  237–​8 limited interaction  233 practice of competition authority  238 three decisions of Constitutional Court  234–​7 Eurasian Economic Union (EAEU) citation over the years 2012–​2018  65f extent of influence  68–​70 fields of law  66–​8, 66t, 67f number of cases  64t presentation of the findings  63–​6 relative impact of CJEU decisions cited 69f sources used  60–​2 extent of influence Azerbaijan  237–​8 Eurasian Economic Union (EAEU)  68–​70 Georgia  254–​6 Israel  286–​9 Russia  169–​72 Switzerland  107–​12,  112f Turkey  132–​9 Ukraine  194–​6 fields of law Eurasian Economic Union (EAEU)  66–​8, 66t, 67f Georgia 250t Israel  282–​4, 283t, 284f Russia 161t, 171f Switzerland  106–​7,  107t Turkey 133t Ukraine 194t Georgia CJEU citations 1996–​2019  250f Constitutional Court  250–​1 decisions of Competition Agency  256–​60 decisions of Competition Agency according to area of regulation  259t district courts and courts of appeal  253–​4 extent of influence  254–​6 fields of law 1996–​2019  250t overview 248 sources used  247–​8 Supreme Court  251–​3 instructions to researchers  11–​14

Israel CJEU citation by Israeli tribunals 1977–​2019  277t CJEU citation over the years 1980–​2019  281f extent of influence  286–​9 fields of law  282–​4 most-​cited CJEU cases  284–​6, 285t presentation of the findings  278–​81 relative impact of the CJEU decisions cited 287f sources used  276–​7 in which fields of law—​by all tribunals  284f in win which fields of law do the tribunals cite 283t number of cases Eurasian Economic Union (EAEU)  64t Georgia 249t Russia  159–​60, 159–​60t Switzerland  105–​8, 105t, 106t Turkey 128t, 129f Ukraine 194t relative quantity and the impact of CJEU citations Armenia  365–​70 Azerbaijan  365–​70 Eurasian Economic Union  357–​9 Georgia  363–​5 Israel  359–​61 Jordan  365–​70 jurisdictions with high impact  352–​9 jurisdictions with low impact  365–​70 jurisdictions with moderate impact  359–​65 overview 351 Russia  361–​3 Switzerland  352–​3 Tunisia  365–​70 Turkey  355–​7 Ukraine  353–​5 Russia Court of Intellectual Property Rights  162, 167 customs matters  167–​8 extent of influence  169–​72 Federal Arbitration Court of the Ural District 164 fields of law 2006–​2018  161t, 171f general jurisdiction court (Moscow)  169 higher courts  161 mid-​level arbitration courts  161–​4 by Russian Courts 2006–​2018  162f Russian Higher Arbitration Court  164–​5 Russian Supreme Court  166–​7 sources used  158

Index  399 Supreme Court  162 Tenth Arbitration Appellate Court  165–​6 Switzerland according to fields of law  107t extent of influence  107–​12, 112f legal logic behind CJEU references  110f most-​cited judgments  113 Tunisia approach and methodology  335–​6 Competition Council  338–​41, 338–​40t no references on ordinary courts  337 sources used  334–​6 Turkey Council of State  127–​8, 131t Court of Cassation  126–​7, 130t ECtHR judgments  129–​30 extent of influence  132–​9 fields of law  133t sources used  124–​6 Turkish Constitutional Court (TCC)  126 Ukraine extent of influence  194–​6 fields of law  194t history and development of judicial activism  189–​93 sources used  193 Civilization  343, 382, 384, 387 Competition authorities Azerbaijan 238 EU as a ‘neo-​liberal’ hegemon and/​or a ‘gentle civilizer’ 387 Georgia  256–​60,  259t Israel  294–​9 Switzerland  103–​4 Tunisia  338–​41, 338–​40t,  342–​3 Continental Europe Switzerland see Switzerland Turkey see Turkey Court of Justice of European Union (CJEU) see citation of CJEU decisions; EU law Courts Armenian Constitutional Court  202 Azerbaijan  225–​6 Constitutional Court of Ukraine  175–​6 EAEU Court composition of court  57 procedures and standing  60–​2 structure of court  59–​60 European Court of Human Rights (ECtHR)  45–​8, 52, 174–​5, 202, 221–​2, 232, 345 Georgia common courts  242–​3 Constitutional Court  242

court of appeal  243 first-​instance courts  243 Israel district courts  267–​8 labour courts  268 magistrates’ courts  268 secular and religious courts  267 Supreme Court  267 Jordan accessibility to the courts  312 annual reports on status  312–​13 court system  309–​10 national courts as part of CJEU  39–​43 relevance of international case law ECtHR  45–​8 ICC 49 ICJ  48–​9 role of national courts of third countries  49–​51 Russia arbitration courts  147 Constitutional Court  147 federal courts  147 military courts  147 number of cases considered  148 Supreme Court  147 Swiss Federal Supreme Court composition and qualifications  87–​8 evolving doctrine of ‘euro-​compatible’ interpretation  96–​104 interpretive approaches  89 publication strategy  88 Tunisia  324–​5 Turkey Council of State  127–​8 Court of Cassation  126–​7 Turkish Constitutional Court (TCC)  126 US Supreme Court  50–​1

  Direct effect Israel 290 Kaliningrad Transit case  73 national courts as part of CJEU  40 need to reassess institutions and principles  77 Russia 165 Switzerland 86 Ukraine 192 WTO Agreements  44   EU agreements see International agreements including agreements with EU EU law citations see citation of CJEU decisions extraterritorial reach and effects  14–​15

400 Index EU law (cont.) ‘global reach’ of EU law see ‘global reach’ of EU law relevance of external case law national courts as part of CJEU  39–​43 overview  38–​9 role in international agreements agreements with neighbouring countries  18–​23 CJEU as agent of its own external authority  23–​7 Eurasian Economic Union (EAEU) Armenian membership  200, 204–​5, 213–​14 citations extent of influence  68–​70 fields of law  66–​8, 66t, 67f number of cases  64t presentation of the findings  63–​6 relative impact of CJEU decisions cited  69f sources used  60–​2 court composition of court  57 procedures and standing  60–​2 structure of court  59–​60 important judgments General Freight case  70–​1 Kaliningrad Transit case  73–​4 Tarasik v Commission  71–​2 judiciary changes in judicial powers  74–​6 establishment of new permanent judicial body 57 legal system  55–​6 new challenges for post-​Soviet Russia  153 overview  54–​5 relative quantity and the impact of CJEU citations  357–​9 summary of findings  76–​7 ‘Euro-​compatible’ interpretation sectoral agreements  98–​101 spectacular evolution in competition law  103–​4 summary of findings  114 unfolding history  96–​8 unilaterally ‘adapted’ law  101–​3 European Court of Human Rights (ECtHR)  45–​8, 52, 174–​5, 202, 221–​2, 232, 345 External case law see also EU law Azerbaijan 233 Eurasian Economic Union (EAEU) General Freight case  70–​1 Kaliningrad Transit case  73–​4 Tarasik v Commission  71–​2

instructions to researchers  11 Jordan  316–​18 relevance to EU law national courts as part of CJEU  39–​43 overview  38–​9 relevance of international case law bilateral arbitration clauses  45 human and fundamental rights  45–​8 from judicial or quasi-​judicial bodies  43–​4 WTO Agreements and rules  44–​5 role of national courts of third countries  49–​51 summary of findings  51–​3 Tunisia  329–​31 Ukraine  188–​9

  Georgia approximation of laws  245–​7 citations CJEU citations 1996–​2019  250f Constitutional Court  250–​1 decisions of Competition Agency  256–​60 decisions of Competition Agency according to area of regulation  259t district courts and courts of appeal  253–​4 extent of influence  254–​6 fields of law 1996–​2019  250t number of cases 1996–​2019  249t overview 248 sources used  247–​8 Supreme Court  251–​3 judiciary  243–​5 legal system civil law system  241–​2 common courts  242–​3 Constitutional Court  242 Constitutional provisions  242 court of appeal  243 first-​instance courts  243 overview 241 relative quantity and the impact of CJEU citations  363–​5 summary of findings  260–​1 ‘Global reach’ of EU law amalgamation of domestic and third-​country firms  31–​2 Brussels effect  34t emergence of regulatory conflicts  32–​3 important actor in Brussels Effect  34 interpret EU law as giving rise to firm-​level territorial extension  31 interpretation and application of EU legislation  30–​1 lawfulness of extraterritoriality and territorial extension 28t,  29–​30

Index  401 levels of territorial extension in EU law  28t overview 17 summary of findings EU as a ‘neo-​liberal’ hegemon and/​or a ‘gentle civilizer’  382–​7 grouping of neighbouring countries and the relative impact  388–​92 mixed picture for role of EU  393–​4 threefold distinction of unilateral mechanisms  378–​82 techniques to externalize application of EU law  27–​8 territorial and non-​territorial triggers distinguished  28–​9 Governments and politics see Regulation in the third countries   Hegemon  351, 382–​6, 393 Human rights Armenia 202 Azerbaijan  221–​2,  232 Israel 302 relevance of international case law  45–​8 Russia  145, 150 Tunisia  323, 330–​2, 343, 345 Turkey  120, 129 Ukraine  174–​5   International agreements including agreements with EU Armenia  202–​4 Azerbaijan  231–​2 bilateral agreements with neighbouring countries  21–​2 EU–​Russia bilateral agreements  143 Eurasian Economic Union  55–​6 Georgia  245–​7 instructions to researchers  11 international agreements with its neighbouring countries  19t Israel EU–​Israel Association Agreement  273–​5 trade agreements  272–​3 Jordan  305, 314 overview 17 relevance of WTO Agreements and rules  44–​5 role of CJEU agreements with neighbouring countries  18–​23 CJEU as agent of its own external authority  23–​7 Russia 149 sectoral agreements with neighbouring countries 24t

Switzerland -​ EU  91–​4 Tunisia  332–​4 Turkey  116–​17 Ukraine 178 International Court of Justice (ICJ)  48–​9 International Criminal Court (ICC) 49 Interpretation bilateral agreements with neighbouring countries  21–​2 ‘euro-​compatible’ interpretation by SFC  96–​104, 114, 352 ‘global reach’ of EU law interpret EU law as giving rise to firm-​level territorial extension  31 interpretation and application of EU legislation  30–​1 sectoral agreements with neighbouring countries 24t Swiss Federal Supreme Court evolving doctrine of ‘euro-​compatible’ interpretation  96–​104 general approaches  89 Ukraine jurisdiction to interpret the EU acquis  183–​4 uniform interpretation of legal norms  184–​5 unified interpretation of Russian Federal laws 150 Israel approximation of laws  273–​5 citations CJEU citation by Israeli tribunals 1977–​2019  277t CJEU citation over the years 1980–​2019  281f extent of influence  286–​9 fields of law  282–​4 foreign cases  271–​2 most-​cited CJEU cases  284–​6, 285t presentation of the findings  278–​81 relative impact of the CJEU decisions cited 287f sources used  276–​7 in which fields of law—​by all tribunals  284f in win which fields of law do the tribunals cite 283t CJEU influence on Israeli regulation Bosman decision and its impact  299–​301 ‘right to be forgotten’—​Google Spain v Costeja  301–​3 courts district courts  267–​8 labour courts  268

402 Index Israel (cont.) magistrates’ courts  268 secular and religious courts  267 Supreme Court  267 EU as a ‘neo-​liberal’ hegemon and/​or a ‘gentle civilizer’ 382 influence of CJEU on Israeli competition law  294–​9 judiciary appointments  268–​9 dialogues with foreign judiciaries  271 district court judges  267–​8 familiarity with EU law  275–​6 ‘legal assistants’ and ‘law clerks’  270 qualifications 269 total number  268 legal system  266–​7 most important judgments HCJ 104/​87 Dr Naomi Nevo v National Labour Court  291–​4 HCJ 698/​80 Qawasmeh v Minister of Defence (1980)  290–​1 overview  265–​6 relations with EU EU–​Israel Association Agreement  273–​5 familiarity with EU law  275–​6 trade agreements  272–​3 relative quantity and the impact of CJEU citations  359–​61 summary of findings  302–​4   Jordan citation of foreign and international law in general  316–​18 courts accessibility to the courts  312 annual reports on status  312–​13 court system  309–​10 economic development  305–​6 international agreements  314 judiciary court system  309–​10 independence 311 separation of powers  310–​11 legal system amalgamation of rules and principles  306–​7 classification of private law  307–​8 Constitutional provisions  307 control of public servants  311–​12 law-​making procedure  308–​9 sources of law  307 overview 305 precedent  313–​14 relationship with EU  315–​16

relative quantity and the impact of CJEU citations  365–​70 summary of findings  318–​19 Judiciaries Armenia  201–​2 Azerbaijan Constitutional provisions  224–​5 mixture of post-​Soviet and Western European models  225 procedural difficulties  226–​7 reform initiatives  227–​8 Eurasian Economic Union changes in judicial powers  74–​6 establishment of new permanent judicial body 57 Georgia  243–​5 instructions to researchers  11 Israel appointments  268–​9 dialogues with foreign judiciaries  271 district court judges  267–​8 familiarity with EU law  275–​6 ‘legal assistants’ and ‘law clerks’  270 qualifications 269 total number  268 Jordan court system  309–​10 independence 311 separation of powers  310–​11 Russia appointment of judges  148 constitutional provisions  147 studies and training  372–​4t Switzerland Federal Supreme Court  87–​8 judicial architecture  86–​7 Tunisia classification into four courts  324–​5 Constitutional provisions  325–​6 interaction with foreign judges  334 official language of the state  327 quasi-​judicial jurisdiction  325 recruitment and training  326 Support Programme for Justice Reform 2012 334 Turkey  117–​20 Ukraine 197 fundamental judicial reform 2016  185–​7 precedents and models of judicial reasoning  187–​8 reform of the judicial system  186f reluctant application and implementation of international agreements  174–​5 use of foreign and international law  188–​9

Index  403 Language barriers analysis of potential and actual impact  372–​4t Armenia  211–​12, 217–​18,  367 Azerbaijan  227–​8,  239 EAEU Court  58–​9 Georgia  243,  255–​6 Israel 272 Jordan  317, 319 overview 15 Russia  148, 170, 363 summary of findings  356, 358–​9, 367–​71, 368 Switzerland  82–​3,  87–​9 Tunisia  327, 343 Turkey  136–​9,  368 Ukraine 189 Union Courts  52 Legal systems Azerbaijan  220–​2,  228–​30 Eurasian Economic Union  55–​6 Georgia civil law system  241–​2 common courts  242–​3 Constitutional Court  242 Constitutional provisions  242 court of appeal  243 first-​instance courts  243 instructions to researchers  11 Israel  266–​7 Jordan amalgamation of rules and principles  306–​7 classification of private law  307–​8 Constitutional provisions  307 control of public servants  311–​12 law-​making procedure  308–​9 sources of law  307 Russia  144–​6 Switzerland  84–​6 Tunisia  321–​4 Turkey  115–​17 Ukraine  173–​7   Middle East see also North Africa Israel see Israel Jordan see Jordan   Neo-​liberalism  382–​3,  386 North Africa see also Middle East Tunisia see Tunisia   Policy recommendations Azerbaijan  239–​40 Jordan  318–​19 Russia 172

summary of findings  394–​6 Ukraine  196–​8 Post-​soviet  states Armenia see Armenia Azerbaijan see Azerbaijan Georgia see Georgia Russia see Russia Ukraine see Ukraine Precedent Azerbaijan decisions of national courts  232–​3 general rule  232 international and foreign jurisprudence 233 EAEU Court  57 instructions to researchers  11 Jordan  313–​14 Swiss legal system  85–​6 Tunisia  327–​8 Ukrainian judicial system  187–​8 Preliminary ruling procedure EURASEC Court  75–​7, 359 exclusion by international agreement  26–​7 national courts as part of CJEU  40–​1 relevance of international case law  43, 45, 50 Ukraine  183–​4   Regulation in the third countries CJEU influence on government and legislation in Tunisia  341–​2 focus of research  16 impact of CJEU in Azerbaijan  239 instructions to researchers  14 Israel Bosman decision and its impact  299–​301 ‘right to be forgotten’—​Google Spain v Costeja  301–​3 support for further spread of European legal culture in Russia  172 Research project aims exploring the external impact of CJEU  3 resolving the mismatch between theories of influence  4–​5 instructions to researchers aims of project  10 instructions to contributors  10–​15 methodology used  5–​7 Russia application of international law  148–​9 approximation of laws  151–​8 citations Court of Intellectual Property Rights  162, 167 customs matters  167–​8

404 Index Russia (cont.) extent of influence  169–​72 Federal Arbitration Court of the Ural District 164 fields of law 2006–​2018  161t, 171f general jurisdiction court (Moscow)  169 higher courts  161 mid-​level arbitration courts  161–​4 number of cases  159–​60 number of cases 2006–​2018  159–​60t overview 158 by Russian Courts 2006–​2018  162f Russian Higher Arbitration Court  164–​5 Russian Supreme Court  166–​7 sources used  158 Supreme Court  162 Tenth Arbitration Appellate Court  165–​6 courts arbitration courts  147 Constitutional Court  147 federal courts  147 military courts  147 number of cases considered  148 Supreme Court  147 EU–​Russia bilateral agreements  143 international agreements  149–​50 judiciary appointment of judges  148 constitutional provisions  147 legal system  144–​6 relative quantity and the impact of CJEU citations  361–​3 support for further spread of European legal culture in Russia  172 unified interpretation of Federal laws  150   Standing Eurasian Economic Union (EAEU)  60–​2 Georgia 250 Tunisia 341 Summary of findings Armenia  218–​19 Azerbaijan  239–​40 Eurasian Economic Union (EAEU)  76–​7 external case law  51–​3 factor-​by-​factor analysis actual findings  371–​7 analysis of potential and actual impact  372–​4t underlying hypothesis  370–​1 general aims of project  349–​51 Georgia  260–​1 ‘global reach’ of EU law EU as a ‘neo-​liberal’ hegemon and/​or a ‘gentle civilizer’  382–​7

grouping of neighbouring countries and the relative impact  388–​92 mixed picture for role of EU  393–​4 threefold distinction of unilateral mechanisms  378–​82 instructions to researchers  14–​15 Israel  302–​4 Jordan  318–​19 policy recommendations  394–​6 relative quantity and the impact of CJEU citations Armenia  365–​70 Azerbaijan  365–​70 Eurasian Economic Union  357–​9 Georgia  363–​5 Israel  359–​61 Jordan  365–​70 jurisdictions with high impact  352–​9 jurisdictions with low impact  365–​70 jurisdictions with moderate impact  359–​65 overview 351 Russia  361–​3 Switzerland  352–​3 Tunisia  365–​70 Turkey  355–​7 Ukraine  353–​5 Switzerland  113–​14 Tunisia Competition Council  342–​3 general feeling about European values  345 ideological argument  343 influence of French law  343–​4 ordinary courts  342–​3 role of the parties  344–​5 weakness of comparative research  344 Ukraine impact of pro-​European foreign policy  196–​7 process of applying EU–​Ukraine AA  197 reliance on successful performance of several factors  198 transition from ‘Soviet-​style’ judiciary  197 Switzerland approximation of laws expanding network of agreements with EU  91–​4 general aspects  90–​1 unilateral alignment of Swiss law with EU law  94–​6 citations according to fields of law  107t extent of influence  107–​12, 112f legal logic behind CJEU references  110f most-​cited judgments  113

Index  405 number of cases  105–​7, 105t, 106t publication strategy  88 Federal Supreme Court composition and qualifications  87–​8 evolving doctrine of ‘euro-​compatible’ interpretation  96–​104 publication strategy  88 judiciary Federal Supreme Court  86–​7 judicial architecture  87f legal system  84–​6 overview  81–​2 relative quantity and the impact of CJEU citations  352–​3 summary of findings  113–​14 Swiss Confederation and its Constitution  82–​4 Swiss Federal Supreme Court interpretive approaches  89

  Tunisia citations approach and methodology  335–​6 Competition Council  338–​41, ​40t no references on ordinary courts  337 sources used  334–​6 CJEU influence on government and legislation  341–​2 courts  324–​5 foreign and international influences academic writings  331–​2 legal sources  329–​31 judiciary classification into four courts  324–​5 Constitutional provisions  325–​6 interaction with foreign judges  334 official language of the state  327 quasi-​judicial jurisdiction  325 recruitment and training  326 Support Programme for Justice Reform 2012 334 legal system  321–​4 overview 320 precedent  327–​8 relations with EU general framework  332–​4 interaction with judges  334 relative quantity and the impact of CJEU citations  365–​70 summary of findings Competition Council  342–​3 general feeling about European values  345 ideological argument  343 influence of French law  343–​4

ordinary courts  342–​3 role of the parties  344–​5 weakness of comparative research  344 Turkey approximation of laws  120–​4 citations Council of State  127–​8, 131t Court of Cassation  126–​7, 130t ECtHR judgments  129–​30 extent of influence  132–​9 fields of law  133t number of cases 1960–​2016  128t number of cases 2003–​2018  129f number of cases by higher courts  128t overview  124–​6 sources used  124–​6 Turkish Constitutional Court (TCC)  126 judiciary  117–​20 legal system  115–​17 relative quantity and the impact of CJEU citations  355–​7   Ukraine citations extent of influence  194–​6 fields of law  194t history and development of judicial activism  189–​93 number of cases  194t sources used  193 Constitutional Court  175–​6 courts  185–​6 EU as a ‘neo-​liberal’ hegemon and/​or a ‘gentle civilizer’ 382 framework of relations with EU Common Foreign and Security Policy  178–​9 Constitutional provisions  179 effective implementation and application of AA  180–​1 EU–​Ukraine AA  177–​8 intergovernmental dispute settlement mechanism 183 international agreements  178 jurisdiction to interpret the EU acquis  183–​4 patchwork of legislative approximation mechanisms  181–​3 preliminary ruling procedure  183–​4 significant political, economic, and legal importance of AA  179–​80 uniform interpretation of legal norms  184–​5 international relations  173

406 Index Ukraine (cont.) judiciary fundamental judicial reform 2016  185–​7 precedents and models of judicial reasoning  187–​8 reform of the judicial system  186f reluctant application and implementation of international agreements  174–​5 transition from ‘Soviet-​style’ judiciary  197 use of foreign and international law  188–​9 overview 173 precedents and models of judicial reasoning  187–​8 relative quantity and the impact of CJEU citations  353–​5 summary of findings

impact of pro-​European foreign policy  196–​7 process of applying EU–​Ukraine AA  197 reliance on successful performance of several factors  198 transition from ‘Soviet-​style’ judiciary  197 transition of legal system  173–​7 use of foreign and international law  188–​9 US case law  50–​1, 52, 271   World Trade Organisation (WTO) Armenia 199 external case law  44–​5, 52 role in EAEU legal order  56 Russia  151–​2 Turkey 116