THE EAEU COURT — A LEGAL SUPERSTRUCTURE OF INTEGRATION

The Eurasian Economic Union (EAEU or EEU), founded a decade ago, wields enormous influence on the sustainable development of its member states and the populations’ living standards. And it is the results of the EAEU’s influence — on the modernisation pace, cooperation, and competitive growth of nation-al economies — that determine to a large extent whether integration is an appealing prospect for the entire Eurasian space.

The rates and the scope of strategic plans to advance integration, most certainly, demand constant monitoring and updating, given the capacities of individual EAEU member states, global influences, and geopolitics. In terms of legal developments, the EAEU is making significant strides to secure a favourable investment climate, protect investments, support and foster import substitution, encourage industrial cooperation, and reinforce the EAEU member states’ technological sovereignty.

A number of measures, such as general customs regulations; common technical regulations; sanitary, veterinary and phytosanitary standards and norms, are already yielding prac-tical benefits for both businesses and the population. The outcomes and the momentum achieved testify not only to the eco-nomic performance, increasing mutual investment and trade, and higher trade turnover with third countries, but also to the Union’s expanding legal framework, coherent measures to harmonise and unify legislation, and better law enforcement practices.

And the EAEU Court, as a supranational body tasked with securing the uniform application by all the EAEU member states and bodies of the Treaty on the Eurasian Economic Union (TEAEU; May 29, 2014), international treaties within the Union, international treaties of the Union with third parties and decisions of its bodies, plays a vital role in developing and advancing the integration. The EAEU Court began its work together with the Union and, along with the Eurasian Economic Commission (EEC), is a permanent institution-al body of the EAEU.

The Court’s specific features as an international judicial body are defined by its functions set out in the Statute of the Court under the Treaty. Apart from settling disputes concerning economic entities, the Court, at the request of a EAEU member state or the EEC, is engaged in clarifying the provisions of the Treaty, internation-al agreements within the Union, as well as decisions of the Union’s bodies; and at the request of the personnel and officials of the EAEU bodies and the Court, the provisions of the above-mentioned legal acts concerning labour law relations.

In simple terms, the Court at the supranational level is vested with the interpretative functions common to constitutional review bodies of the member states, as well as the dispute settlement functions exercised by the judiciary. With the procedural activity of economic entities soaring significantly in recent years, above all due to their growing awareness of dispute settlement methods, the EAEU Court, in 2023, heard more than three times as many cases as in the first year of its work. In 2024, with the new bench of judges, the number of procedural appeals has doubled compared to the same period in 2023.

There has also been a clear shift in the range of issues brought before the Court. Whereas at the first stage of its activity the EAEU judges heard cases mainly related only to such law enforcement areas as customs and technical regulation, this year’s range of judicial enforcement covers a whole dozen of topics, including general issues of the EAEU law; internal market protection, sanitary and quarantine measures; goods labelling; service trade; tax and transport policy; general principles and competition rules; public procurement and subsidies; labour migration regulation and labour law relations in the EAEU bodies.

As for the Court’s influence on the Eurasian integration, it is worth noting the vital role of its legal stand-points not only in settling particular disputes, but above all in bridging gaps in the EAEU law. In this vein, it is the Court’s judicial interpretation and findings articulated in its judgements and, in particular, in its advisory opinions that have a direct impact on the development of EAEU law.

The issue of uniform application of the array of legal acts arises, after all, not only due to violation and disregard of legal provisions, but also as a result of discrepancies in interpretation, and at times even loopholes in legal reg-ulation. It should be mentioned that this issue is typical of integration associations and is objectively determined by the fact that those matters, previously subject to the sovereign juris-diction of the member states, are now regulated at the supranational level.

Besides the need to harmonise the will of all member states, integration associations invariably introduce fundamentally new, previously non-existent fields of activity and regulation, which is yet another factor behind the imperfection of legal regulation. Hence, the legal standpoints of an international court on how to interpret the law of an integration association serve not only as a basis for settling a particular legal dispute, but also as a framework for developing new regulation acts. It is not by chance that the aim of bridging “gaps” in legal regulation within the EAEU was singled out as a priority in the Strategic Directions for Development of Eurasian Economic Integration until 2025.

Moreover, in integration associations, it is the courts that act as bodies that secure a certain “legal sovereign-ty,” if you like, and an ideal balance between the autonomy of the legal regime of such an association and the compliance with international legal obligations. By shaping common approaches to the interpretation of the Union’s general principles and law, the legal standpoints of the EAEU Court affect both the lawmaking of the member states and the law enforcement activities of the EEC.

Thus, judicial powers of normative control over contested EEC rulings have repeatedly contributed to the protection of the rights and legitimate interests of economic entities, lifting of unreasonable sanctions im-posed on them, and review of other EEC rulings.

The impact of the legal stand-points of the EAEU Court as a tool of “soft regulation” is shown, for in-stance, on the implications of the Advisory Opinions delivered on 4 April 2017 at the request of the Ministry of Justice of the Republic of Belarus in Case Note P-1/17 on the Criteria for Eligibility of Vertical Agreements; on 7 December 2018 at the request of the EEC in Case Note P-3/18 on Professional Athletes; and on 22 November 2022 at the request of the EEC in Case Note P-4/22 on the Methods of Securing Bids in Public Procurement.

So, the Belarusian legislature welcomed the EAEU Court’s findings concerning the regulatory constraints in the national legislation of the EAEU member states on the criteria of eligibility of vertical agreements, which was reflected in the new wording of the Law on Counteracting Monopolistic Activities and Promoting Competition.

The Court’s legal standpoints in Case Note R-3/18, under the orders of the Ministry of Sport of the Russian Federation, resulted in the lifting of quantitative restrictions on professional athletes — citizens of EAEU member states — who have the right to represent national teams. In the third case given as an ex-ample, the Court’s standpoint was embodied in Decree No. 579 of the Government of the Russian Federation enacted on 10 April 10 2023, regulating the peculiarities of the procedure of securing bids for the procurement of goods, works and ser-vices by foreign citizens participating in such procurement to meet state or municipal needs.

A key finding of the Court’s Grand Chamber in its Advisory Opinion de-livered on 28 March 2024 on the Application for Clarification of para-graphs 53 and 54 of the Regulation on Social Guarantees, Privileges and Immunities within the Eurasian Economic Union (see Annex 32 to the Treaty on the Eurasian Economic Union) is quite revealing. As the Court’s Grand Chamber found, “Ensuring uniform interpretation and application of Union law by the member States... is, on the basis of Article 107 of the Treaty, a prerequisite for the institutional integrity and effective functioning of the Union as an international organization.”

Against this background, the Grand Chamber stressed another fundamental thesis that national legislation and its application in the member States must comply with, and not contradict, the provisions of the Regulations annexed to the Treaty. While EAEU’s role and significance in developing and enhancing integration processes is strengthening, a basic compendium of the Court’s legal standpoints on general issues of application of the Treaty on the Eurasian Economic Union dated May 29, 2014 and international treaties within the Union has been compiled — on the functioning of the Customs Union; labour migration regulation and labour law relations in the EAEU bodies; service trade; internal market protection measures; technical regulation; general principles and rules of competition; transport policy.

The open nature of the Court’s work also contributes to its growing recognition and credibility: all court rulings and procedural documents are made publicly available and accessible on the Court’s website. Yet, the analysis of the Court’s practice shows not only its positive role in the development of regional integration, but also its pending is-sues and the broad potential for im-proving the Union’s legal and regulatory framework.

The Court’s representatives take part in the activities of the EEC’s consolidated Working Group on improving the provisions of the Treaty on the Eurasian Economic Union, the framework of which al-lows to consider a number of initiatives. Thus, the effectiveness of the Court’s rulings implementation mechanism, its effect in time, space and persons, and the Court’s specific authority, including that of a procedural nature, have often been questioned. The Court has accumulated extensive expertise on the application of antimonopoly measures, competition protection and compliance with customs regulations. It would be useful to take advantage of the Court’s potential to protect economic entities from dumping and other barriers, constraints and exemptions hindering entrepreneurship. It might be worth considering tools for preliminary judicial and legal assessment of barriers and constraints in the EAEU market.

A further study of the prospects of using judicial assessment would be beneficial for the interests of the integration association, country-specific measures to protect in-ternal markets, and protectionism in mutual trade. The initiative to introduce preclusive pleas, which could serve as a vital tool of dialogue with national courts, enabling them to seek clarification of EAEU law from the EAEU Court, demands further examination and scientific justification. It is by no means the first time that the subject of the legal nature of the Court’s dissenting opinions when delivering advisory opinions on the clarification of EAEU law has been addressed.

The procedural status of the legal stand-points set forth in the information documents of state and scientific institutions submitted at the request of the Court lacks unambiguity. A number of matters are being re-viewed — the digitalisation of court proceedings, greater remote participation in court hearings, and the engagement of specialists and experts. The institutional development plan calls for measures to enhance the Court’s material and technical capacity, as well as to reinforce the independence of judges. It is worth stressing that any such ideas are controversial, given the imperative to respect the mutual interests of all participants in integration.

Some decisions indeed entail a debate on the member states dele-gating a part of their legal regulation functions, which requires rigorous elaboration and reasoning of the proposals. In this context, we can’t but welcome the initiative of the Committee on Scientific and Educational Cooperation of the World Forum “New Era — New Ways” to create a common scientific base of researchers of Eurasian processes, as well as the joint efforts of the journal “Eurasian Dialogue” and the Institute of Scientific Information on Social Sciences, Russian Academy of Sciences (ISISS RAS), to form a relevant platform for discussions.

Establishing a common legal framework to secure the interests of all EAEU members and the emergence of the EAEU institutional bodies is the most significant achievement of the first decade of Eurasian integration, with strategic documents adopted and important development scenarios outlined, including those for the decades to come. The EAEU objectives declared at the signing of the Union Treaty in Astana shape the areas of further efforts aimed at enhancing legal support for the free movement of goods, services, capital and labour.

As pointed out by the President of the Republic of Kazakhstan Kassym- Jomart Tokayev at a meeting of the Supreme Eurasian Economic Council, “It is necessary to seriously diversify the competitive field, create truly equal opportunities for every entrepreneur and stop monopolising markets,” “to completely eliminate the practice of applying hidden restrictions, so-called point solutions and any manual control.”

The best de-fence against arbitrary decisions and undue restrictions is accurate legal regulation, transparent procedures, and effective judicial protection. Understanding the value of organisational and legal measures to strengthen judicial guarantees by the EAEU supreme bodies and national state authorities is a critically vital aspect of the Court’s development and, ultimately, that of the legal frame-work for integration. In the present context, the new EAEU development strategy is taking shape amid high uncertainty, when nearly all the world economies are experiencing changes.

Given the current factors — the EAEU market volume, transport and logistics, demography, among others — there is a growing interest in new sales markets and new global value chains, which does not exclude an expanding space of the integration association. And this also explains the trend towards stronger engagement of the EAEU member states with the BRICS, SCO, ASEAN, and the African Union. Along with that, it implies new tasks for the development of legal institutions and mechanisms, for example, the level of organisation and functioning of the EAEU Court should correspond as much as possible to modern ideas of justice and access to it. Interaction between the Court and arbitration institutions in the Eurasian space needs to be enhanced, and the role and effect of the Court’s legal standpoints on the arbitration settlement of disputes should be strengthened.

The Court should have the capacity to step up its scientific and research potential, develop legal infrastructure, nurture and develop an expert community qualified in terms of the practical application of the norms of international and interregional law that regulates the activities of participants in integration associations and eco-nomic entities.

Among the priorities of the EAEU’s legal development is ensuring un-biased and timely judicial and legal defence, without the risk of any influence on the Court’s decision-making and taking into account the current financial, economic, political and other interests of the member states, the Union, and its bodies. An independent and effective EAEU Court is a guaran-tor for the respect of the integration association’s principles, which eventually contributes to the successful work of the Union as a whole.

ASKAR B. KISHKEMBAEV, Ph.D. in Law, professor at the Higher School of Law (HSL) of KAZGUU named after M.S. Narikbayev (formerly Kazakh Humanitarian Law University) Graduated from the Kazakh Humanitar-ian Law University, Diplomatic Academy of the Ministry of Foreign Affairs of the Russian Federation. Author of more than 70 publications on law, economy, and Eurasian integration. Member of the Financial & Business Association of Euro-Asian Cooperation, member of the Expert Council under the Commissioner for Human Rights in the Republic of Kazakhstan, member of the Council of the Eurasian Alliance of Anti-monopoly Experts. Appointed as a Judge of the Court of the Eurasian Economic Union in December 2023, member of the International Council of the Supreme Court of the Republic of Kazakhstan since February 2024.