Eva Kassoti, Senior Researcher, CLEER academic co-ordinator, T.M.C. Asser Institute. E-mail: E.Kassoti@asser.nl
In a legal opinion issued on February 20, 2021, Advocate General Hogan addressed a crucial procedural issue: Can a non-EU country legally challenge EU actions before the Court of Justice of the European Union (CJEU)? This question holds significance because the Court has never directly ruled on it within the context of sanctions, and it delves into the principles governing the relationship between EU law and other international law subjects.
The case is an appeal against a General Court ruling from September 20, 2019, where the Court was asked to determine if Venezuela could challenge restrictive measures. These measures banned providing arms, military, and surveillance equipment to any individuals or entities in Venezuela.
Answering this question requires examining whether the conditions outlined in Article 263(4) of the Treaty on the Functioning of the European Union (TFEU) are met. This article addresses the standing to bring direct actions for annulment of EU law by entities other than EU member states or institutions. In this instance, the answer hinges on whether Venezuela is legally considered a “person” directly and individually impacted by these measures. Alternatively, if the measures are deemed regulatory, it’s sufficient to demonstrate that they directly concern Venezuela without requiring implementing measures. The General Court concluded that Venezuela was not directly affected, lacking standing under Article 263(4) TFEU. However, they didn’t address whether Venezuela qualifies as a legal “person” according to the same provision.
The Advocate General focused on two primary issues to address the legal standing question: first, whether Venezuela qualifies as a legal “person” under Article 263(4) TFEU; and second, whether the measures directly concern Venezuela as per the same article. The Advocate General suggested that the CJEU affirm both points. If the Court follows this recommendation, it could strengthen the perception of the EU as a globally responsible actor upholding the rule of law and effective legal protection. This would essentially acknowledge that non-EU countries have the right to challenge EU laws affecting them in EU courts if the conditions of Article 263(4) TFEU are met, even without reciprocal agreements. This post focuses on the Advocate General’s analysis of “legal personhood,” as the “direct concern” aspect has been discussed elsewhere.
Does Article 263(4) TFEU recognize Venezuela as a legal “person”?
According to the Advocate General, both international and EU law considerations support recognizing Venezuela as a legal “person” for the purposes of Article 263(4) TFEU.
International Law Considerations
Regarding international law, the Advocate General rightly dismissed the Council’s argument that the principle of state immunity prevents Venezuela from bringing a lawsuit before the CJEU. The Advocate General contended that state immunity cannot restrict Venezuela’s legal standing because Venezuela is the plaintiff, not the defendant in this case. Under international law, state immunity aims to help states and their representatives carry out their public functions by preventing legal actions against them in foreign courts. However, it doesn’t prevent third-party states from being plaintiffs in foreign courts, as clearly stated in Article 8 of the 2004 UN Convention on Jurisdictional Immunities of States and their Property.
However, the remaining arguments based on international law seem less robust and more convoluted. The Advocate General posited that the international law principle of comity should guide the interpretation of “legal person” under Article 263(4) TFEU. Based on comity, the CJEU should be open to challenges from states acting in their sovereign capacity as international legal persons. It’s worth noting that if the Court addresses this point, it would mark the first direct ruling on whether international legal personality automatically qualifies an entity as a “legal person” for annulment actions. The Polisario Front, a national liberation movement with potential international legal personality, previously raised this argument in the Front Polisario v Council case. However, the General Court avoided engaging with it, ruling on Polisario’s legal personality solely based on EU law.
From an international law perspective, the Advocate General’s argument is unconvincing. No customary international law compels one state to allow another to sue in its courts. Comity is a domestic legal principle, primarily used in US courts, that grants deference to foreign states to be plaintiffs in domestic courts. The Advocate General cited the US Supreme Court’s Banco National de Cuba v Sabbatino judgment and other relevant case law (The Sapphire; Hilton v Guyot; The Santissima Trinidad – all US Supreme Court judgments) to support the domestic origin of the comity principle. However, the Advocate General didn’t demonstrate how this domestic principle became part of international law. Using domestic cases to make generalizations about international law requires caution. The very concept of “comity” in international law relates to discretionary practices, contradicting the modern understanding of customary international law as “evidence of a general practice accepted as law” (Article 38(1)(b) ICJ Statute).
Despite the international law misstep, a valid question arises: are there compelling reasons to adopt this doctrine within EU law? While comity differs from international law, it’s an internationally relevant principle shaping a state’s external relations. Showing deference to third-party states as litigants before the CJEU aligns with Articles 3(5) and 21 TEU, solidifying the EU’s image as a reliable and internationally engaged entity committed to the rule of law.
EU Law considerations
The Advocate General also referenced EU law precedents where the CJEU indirectly acknowledged that third-party states have legal standing to file for annulment under Article 263(4) TFEU, though these rulings weren’t in the context of restrictive measures like the current case (Cambodia and CRF v Commission, para. 51; Poland v Commission, paras. 51,52; Switzerland v Commission, para. 22). Regarding restrictive measures, the Advocate General highlighted the Court’s judgment in PKK and NKK v Council, suggesting that even without legal personality, an entity directly and individually affected by such measures must be able to access EU courts to protect its rights. Based on these precedents and considering the core EU law principles of upholding the rule of law and effective legal protection, the Advocate General concluded that Venezuela should be considered a legal “person” under Article 263(4) TFEU. This applies even without reciprocity, as respect for these principles isn’t based on reciprocity and shouldn’t be subject to diplomatic bargaining or reciprocal treaty obligations.
This part of the Advocate General’s opinion is particularly compelling, especially considering the Court’s relevant case law. In PKK and NKK v Council, the Court emphasized that procedural rules governing annulment actions should avoid “excessive formalism,” which could deny an entity subject to restrictive measures the chance to seek annulment. It’s worth noting that denying Venezuela, a sovereign state and a prime example of an international legal person, the ability to initiate annulment proceedings while granting this right to entities like the Polisario Front and the Liberation Tigers of Tamil Eelam might raise concerns.
While acknowledging the merits of the Advocate General’s approach to legal personhood, potential implications for EU foreign relations arise. Would allowing third-party states to challenge EU laws before the CJEU inundate the Court with politically charged questions about recognizing entities like Kosovo and Palestine? This fear seems exaggerated. As US courts have applied the comity doctrine, exceptions exist for states not recognized by the US. This ensures that while the CJEU demonstrates openness to reviewing measures affecting third-party states, it wouldn’t be used to decide on potentially contentious recognition issues.
Barnard & Peers: chapter 24
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