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Post-Soviet Integration : The Absence of a Union of Law I

The notion of “Union of law” refers to a transposition at the Union level of the rule of law. This fundamental notion refers to many concepts such as, for example, the submission of policies to the law, respect for fundamental rights or even the existence of a hierarchy of norms. But a key element of the rule of law is the availability of an effective judicial remedy. When the separation of powers is sufficiently well established, an independent judiciary is able to safeguard the rule of law by compelling the executive to respect the law.

It is for this reason that the Court of Justice has played such a major role in European construction. If his jurisprudential work was timid at the beginning, it grew more and more extensive, until it became unavoidable. We are all familiar with the most famous decisions of the Court of Justice, such as the decisions creating a principle of effective judicial remedy in a Community of Law or those on the primacy of Union law. It seems difficult to conceive of European integration without the sustained activity of the Court, which has interpreted and implemented the Treaty to enshrine its rights.

This work is all the more important as it is guided by the needs of society. Thus, as several authors point out, operators make use of their freedom of movement, which can create disputes or questions about the scope of European standards. These legal issues are then dealt with by the Court which, by providing solutions, will advance EU law and some of these solutions are also taken up by the European institutions during the revision of the Treaties. The preliminary ruling procedure is obviously central to this process.

Of course, the Court is not all-powerful. Member States and European institutions can always prevent its work by adopting binding acts. But the European institutional balance is sufficiently well thought out to require the emergence of a qualified majority in the Council and an absolute majority in Parliament to overturn a court decision taken by the Court. Moreover, while some authors (notably Geoffrey Garrett) have considered that the Court's leeway is only limited to what the States were willing to give it, this statement must be qualified by the fact that often the States accept the jurisprudential development made by the Court even though they had not foreseen it. Some speak of a rational choice by States to follow the movement of the Court because it makes it possible to combat obstacles to the application of the treaty and thereby embodies negative integration.

The Court of the Eurasian Economic Union is quite different. If it exists, it is practically only to serve the States. During its study, we are first struck by the total absence of a preliminary ruling procedure (even though it is an essential element of European integration from which the EEU claims to draw inspiration). There is also no dialogue between judges or even a Charter of Rights that would allow the Court to act. The Court is in fact limited to three jurisdictions only: the annulment of acts contrary to the Treaty, the resolution of disputes between Member States when provided for by the treaty and the interpretation of Union law at the request of the States.

These remedies are quite limited. The interpretation of Union law, for example, can only be done at the request of the Member States and, moreover, its opinion is only advisory. Not being authoritative, States can always interpret EU law as they see fit. Actions for annulment or default are essentially possible after diplomatic negotiations, aimed at an amicable settlement, have failed between the Member States. An appeal is also provided for if a Member State has not taken, within three months, the slightest measure to resolve the dispute of which it has been notified. Individuals can, in theory, seize the court if they are economic agents, but their recourse concerns only the action for annulment of acts of Union law contrary to the Treaties and affecting them personally.

This is all the Court can do in the EEU. It is clearly noted that there is no recourse for default against the States, nor are there any means of pressure or possible fines under EEU law. Similarly, national law is virtually untouchable even if it would interfere with EEU law. All disputes are in fact destined to be resolved through diplomatic channels. We are faced with a powerless Court. A Court whose jurisdiction extends only to compliance with the law derived from the treaty.

Without an effective Court, it is difficult to conceptualize a Union of Law in the EEU. The States have defended themselves from having to report to a Court and having it disturb their domestic law, like the CJEU has done in the EU. But without such a Court, Eurasian integration seems compromised. One could even say that without such a Court, the EEU is doomed to be just another economic organization, with no real prospects for growth or progress.

This brings us to the last consideration to have on Eurasian integration: the incompatibility of political models, leading to an ineffective regional integration.


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