Eva Kassoti, Senior Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl

Photo credit: Aljabakphoto, via Wikimedia commons - Šar Mountains National Park in Dragaš, Kosovo

On January 17th, 2023, the Court of Justice of the European Union (CJEU) issued its judgment in Case C-632/20 P, Spain v Commission (Kosovo), deciding that Kosovo can participate in the Body of European Regulators for Electronic Communications (BEREC). This decision, reached despite the EU’s non-recognition of Kosovo as a state, clarifies that “third country” status, as defined by the EU, can include territories not recognized as sovereign states and that these entities are eligible for participation in EU agencies. The ruling is particularly noteworthy given Kosovo’s 2022 bid for EU membership and could have broader implications.

This case is an appeal of the General Court’s (GC) judgment of September 23, 2020 (T-370/19). Initially, the GC dismissed Spain’s argument against the involvement of Kosovo’s National Regulatory Authority (NRA) in BEREC, which hinged on the EU’s lack of recognition of Kosovo as an independent state and therefore its ineligibility as a “third country” under Article 35 of the BEREC Regulation. The GC asserted that the Treaty on the Functioning of the European Union (TFEU) uses both “third states” and “third countries,” suggesting the latter term encompasses a broader range of entities beyond states. This interpretation allows for international agreements with entities “other than States.” Spain appealed this judgment, prompting Advocate General Kokott’s opinion on June 16, 2022.

This analysis will center on a key facet of the judgment: the CJEU’s perspective on Kosovo’s participation in an EU agency as a “third country” despite lacking EU recognition of its statehood. The context of this judgment is significant, as it involves not only the politically charged issue of Kosovo’s statehood, contested by five EU member states, but also the ambiguity surrounding Kosovo’s status under international law. While the CJEU refrained from addressing the contentious topics of statehood and recognition, its concise ruling on the matter reveals a reluctance to engage with pertinent international legal principles, ultimately impacting its persuasiveness.

Summary of the Judgment

Spain’s appeal rested on two central arguments: a) whether Article 35(2) of the BEREC Regulation, in conjunction with Article 111 of the EU-Kosovo Stabilisation and Association Agreement (SAA), permits Kosovo’s NRA to participate in BEREC; and b) whether the Commission had the authority to decide on Kosovo’s NRA participation in BEREC. Regarding the first question, Article 35(2) of the BEREC Regulation allows for “third country” participation in the agency if such countries have corresponding agreements with the EU. Thus, interpreting the term “third countries” is crucial. Spain contended that the GC’s broad definition of “third countries” in EU law, encompassing entities beyond states, would create an autonomous category within EU law, diverging from its understanding in international law.

The CJEU rejected the GC’s distinction between “third states” and “third countries,” noting that this distinction isn’t consistently applied in all language versions of the Treaties and shouldn’t be assumed in primary law. Pointing to instances where the terms are used interchangeably, the CJEU criticized the GC for disregarding these linguistic variations and established case law emphasizing the uniform interpretation of different language versions. Consequently, the CJEU deemed the GC’s reasoning flawed, as it rested on the inaccurate premise of a difference between “third states” and “third countries” in primary law.

The CJEU then considered whether “third countries” in Article 35(2) of the BEREC Regulation could include Kosovo. It determined that the principle of effectiveness necessitates recognizing an entity not recognized as a sovereign state as a “third country” under this provision, provided it doesn’t violate international law. Citing the International Court of Justice’s (ICJ) Advisory Opinion on the Kosovo Declaration of Independence, the CJEU argued that Kosovo’s unilateral declaration of independence didn’t breach international law, UNSCR 1244/1999, or the applicable constitutional framework. Additionally, the court emphasized that this conclusion doesn’t impact individual member state positions, as the Commission’s decision regarding Kosovo’s NRA participation in BEREC clearly states that the designation “Kosovo” doesn’t prejudice positions on status.

Turning to the interpretation of “third country” in Article 35 of the BEREC Regulation, the court highlighted that Article 35(2) requires an “agreement” between the third country and the EU for participation. It underscored the existence of several international agreements between the EU and Kosovo, signifying acknowledgment of Kosovo’s capacity to enter such agreements. Article 111 of the SAA, which addresses cooperation in electronic communications, resembles arrangements with other Western Balkan states whose NRAs participate in BEREC, logically extending the provision to encompass Kosovo. Furthermore, understanding “third country” to include entities like Kosovo aligns with Article 35(2)’s purpose of ensuring consistent implementation of the regulatory framework for electronic communications, mirroring Article 111 of the SAA’s objective for Kosovo to adopt the EU acquis in this sector.

However, the CJEU disagreed with the GC regarding the Commission’s authority to unilaterally establish working arrangements for Kosovo’s NRA participation in BEREC. As a result, it set aside the appealed judgment and annulled the relevant decision while maintaining its effects until a new act replaces it.

Comment

Interpretative Approach and Methodology

The CJEU, echoing the Advocate General’s stance, upheld the principle of linguistic equality. This principle dictates a uniform understanding of different language versions, rendering an interpretation of “third countries” based solely on the Treaties inconclusive. However, the court stopped short of outlining its methodology for interpreting the term within the BEREC Regulation, relying instead on the principle of “ensuring the effectiveness” of Article 35(2) to justify considering Kosovo a “third country.” The connection between the principle of effectiveness and the interpretative process in this case remains unclear. The CJEU missed an opportunity to clarify effectiveness as an interpretative guide, prioritizing a teleological approach when facing equally plausible interpretations. In contrast, the Advocate General clearly defined the framework for understanding the term within the Regulation, considering its regulatory context, origin, purpose, and relevant international legal aspects, resulting in a more compelling argument.

The Concept of ‘Third Country’ and Relevant International Legal Considerations

The CJEU offered a concise explanation for classifying Kosovo as a “third country,” without relying on international legal practices to support its interpretation of Article 35(2) as encompassing territories not recognized as “states” by the Union.

This approach raises several concerns. First, it fails to address Spain’s argument that a broader “third countries” definition in EU law could create inconsistencies with international law, where states are the primary actors. Both the GC and the Advocate General cited the EU’s treaty practice with entities not recognized as sovereign states (e.g., PLO, Hong Kong, Macao, Kosovo) to support the idea that entities beyond states can possess limited international legal capacity. Modern international law recognizes legal personality as a spectrum. While states possess the full range of international rights and duties, other actors like insurgent groups, national liberation movements, and non-self-governing territories may have limited legal personality, allowing them to operate on the international stage, including treaty-making capacity. As evidenced by the EU’s treaty practice, decoupling legal personality from the capacity to act moves beyond the misleading “subjects” versus “objects” dichotomy in international law, focusing instead on the extent of legal capacity an entity possesses. Recognizing an entity’s capacity to act, including treaty-making, often hinges on recognition by other actors through engaging in legal relations. While the CJEU acknowledges that “the European Union has entered into several agreements with Kosovo, thus recognizing its capacity to conclude such agreements,” it falls short of elaborating on this point or providing examples from international legal practice or the EU’s treaty practice with unrecognized entities, leaving its logic implied.

Second, the lack of elaboration on international legal practice is detrimental to the CJEU’s “effectiveness” argument. By highlighting the diverse range of actors on the international stage, the court could have strengthened its argument for broadly interpreting the provision to ensure the EU’s effectiveness in global affairs no longer dominated solely by states. This would, however, require granting effectiveness considerations a more prominent role in interpretation. Instead of narrowly focusing on safeguarding the full effect of EU law, effectiveness in this context would entail ensuring the efficacy of EU external action, providing the court with additional tools to secure the EU’s functionality as an international player.

The CJEU’s limited reference to international law is ironic in light of its “effectiveness” argument. It argues that, to ensure the effectiveness of the provision, entities not recognized as sovereign states by the EU should be treated as “third countries,” as long as it doesn’t violate international law. The meaning of “not infringing international law” remains ambiguous. The court’s subsequent reference to the ICJ’s Advisory Opinion on the Kosovo Declaration of Independence implies that Kosovo can be considered a “third country” because its declaration of independence, as per the ICJ, does not breach international law.

The CJEU erred in assuming that the ICJ’s Advisory Opinion addressed the legality of Kosovo’s unilateral secession from Serbia. The ICJ only determined that Kosovo’s declaration of independence, a legally neutral act not in itself creating a state or new legal situation, didn’t violate international law, without addressing statehood or recognition. The CJEU’s reliance on the ICJ’s statement to support treating a territorial entity as a “third country” under EU law, without infringing international law, is therefore misplaced.

In fact, the court’s reference to “infringements of international law” was unnecessary. The case didn’t directly involve formal or implicit recognition of Kosovo as a state by the EU, thus precluding any question of EU responsibility. Article 2 of the Kosovo SAA explicitly states that the agreement does not constitute recognition of Kosovo’s statehood by the Union. The Commission’s decision similarly states that designating Kosovo as such “is without prejudice to questions of status.” The Advocate General avoided this pitfall by directly addressing whether the Commission’s decision impliedly recognized Kosovo as a state.

Whether the EU has an international law obligation to withhold recognition of Kosovo as a state remains a complex question. However, several factors suggest that such an obligation doesn’t exist for Kosovo. First, there’s limited evidence suggesting Kosovo’s unilateral secession violated a jus cogens norm, and no UN resolution calls for collective non-recognition, unlike cases like Southern Rhodesia or the TRNC. Second, recognition from other states, which can remedy deficiencies in a state’s creation, carries weight. With approximately 100 states recognizing Kosovo’s statehood, it can be argued that Kosovo’s state creation was successful.

Despite its shortcomings in reasoning based on international law, the judgment clarifies that the distinction between “third states” and “third countries” doesn’t hold, at least in EU secondary law. The ruling’s implications for EU-Kosovo relations are yet to be determined, especially since Kosovo’s status as a “state,” as seemingly required by Article 49 TEU, remains unresolved.