The early case law of the Eurasian Economic Union Court
| DOI | 10.1177/1023263X18781193 |
| Author | Kirill Entin,Benedikt Pirker |
| Date | 01 June 2018 |
| Published date | 01 June 2018 |
| Subject Matter | Articles |
Article
The early case law of the
Eurasian Economic Union
Court: On the road
to Luxembourg?
Kirill Entin* and Benedikt Pirker**
Abstract
This article examines the first years of the Eurasian Economic Union (EAEU) through the prism of
the Eurasian Economic Union Court’s jurisprudence and draws parallels with the case law of the
Court of Justice of the European Union. The EAEU Court has taken first steps in establishing an
autonomous legal order, but also in linking it with international law. It has interpreted the relevant
law to create a system of legal remedies and started in the interpretive construction of a common
market. We conclude that some differences to EU law are due to the institutional context. At the
same time, the EAEU Court has deliberately taken some decisions to establish its own balance
between autonomy and openness of the legal order it is called to interpret and simultaneously
create.
Keywords
EAEU, EAEU Court, regional integration, legal remedies, direct effect, primacy, free movement of
goods, competition law, comparative law, CJEU
1. Introduction
After a long and rocky road, in 2015 regional economic integration in the geographic area of the
Commonwealth of Independent States has finally celebrated a relative success with the creation of
the Eurasian Economic Union (EAEU). After the early days have passed, the first achievements
can now be assessed. The European Union (EU) and the current state of EU law can serve as a
* Court of the Eurasian Economic Union, Belarus
** Universite
´de Fribourg, Switzerland
Corresponding author:
Benedikt Pirker, Universite
´de Fribourg, Avenue de Beauregard 11, Fribourg, Switzerland.
E-mail: benedikt.pirker@unifr.ch
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(3) 266–287
ªThe Author(s) 2018
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X18781193
maastrichtjournal.sagepub.com
MJ
MJ
benchmark for comparison. The EAEU faces similar challenges as the EU, and the solutions found
in the latter context can provide an alternative perspective for the sake of comparison in a number
of instances. For example, one can think of the relationship to be established between any new
legal regime of regional economic integration and public international law or the law of its
Member States. For lawyers, the natural object of a study such as the present one is the case law
of the EAEU Court and how it has inter preted and given effect to EAEU law. After a short
introduction of the EAEU Court’s core features, in the following sections we discuss what the
early case law reveals about the EAEU Court’s vision of the EAEU’s legal order. The aspects to be
examined include the establishment of the principles of an autonomous EAEU legal order (such as
direct effect or primacy), the connection of the EAEU legal order to international law, the judicial
remedies provided for in EAEU law and the first steps undertaken towards building a common
market.
What we are most interested in in all this is the typical dilemma a supranational court like the
Court of Justice of the European Union (CJEU), but also the EAEU Court, has faced and is facing.
In developing their own legal order through their jurisprudence, such courts seem constantly to
have to balance two goals. On the one hand, they are called to develop an autonomous legal order
and preserve its specificity. On the other, they have an interest in ensuring their legal order’s
connection with other legal orders, namely the overarching framework of international law and the
national legal orders of the Member States. We aim to explore in this paper how the EAEU Court
has managed this tension to date. It becomes visible that it has often looked to the CJEU for
inspiration. As the EAEU Court noted itself in its very first judgment in the Tarasik case, ‘legal
findings and the case law of other courts may be taken into account when delivering judgments on
similar matters, which complies with the principle of persuasive precedent’.
1
However, in other
instances it has expressly disagreed with the CJEU to preserve the special characteristics of EAEU
jurisprudence and the EAEU legal order.
2. The EAEU and its court
The EAEU was formedas the latest result of a numberof attempts of regional economicintegration in
the Commonwealthof Independent Statesarea,
2
notably theearlier Eurasian EconomicCommunity.
3
1. Case CE-1-2/2-15-KC and CE-1-2/2-15/AP Tarasik K.P., para. 2(12) of section VII of the Chamber’s judgment, para.
8.3(9) of section IV of the Appeals Chamber judgment. Summary available in English at Court of the Eurasian
Economic Union, ‘Summary of cases No. CE-1-2/2-15-KC and No. CE-1-2/2-15-AP (individual entrepreneur Tar-
asik)’, Court of the Eurasian Economic Union (2016), http://courteurasian.org/page-25001.
2. See on the complex ‘spaghetti bowl’ of hundreds of international agreements in force at certain times R. Dragneva,
‘The legal and institutional dimensions of the Eurasian Customs Union’, in R. Dragneva and K. Wolczuk (eds.),
Eurasian Economic Integration –Law, Policy and Politics (Edward Elgar, 2013), p. 42; see also R. Dragneva and J. de
Kort, ‘The Legal Regime for Free Trade in the Commonwealth of Independent States’, 56 International and Com-
parative Law Quarterly (2007), p. 233 et seq.
3. See on the latter and its core projects, the customs union and the single economic space J. Cooper, ‘The development of
Eurasian economic integration’, in R. Dragneva and K. Wolczuk (eds.), Eurasian Economic Integration - Law, Policy
and Politics, p. 19 et seq.; Z. Kembayev, ‘Regional Integration in Eurasia: The Legal and Political Framework’, 41
Review of Central and East European Law (2016), p. 165; R. Dragneva, in R. Dragneva and K. Wolczuk (eds.),
Eurasian Economic Integration - Law, Policy and Politics, p. 34; R. Dragneva and K. Wolczuk, in R. Dragneva and K.
Wolczuk (eds.), Eurasian Economic Integration - Law, Policy and Politics, p. 3; one particular achievement of the
customs union of the Eurasian Economic Community was the creation of a customs code, see Treaty on the Customs
Entin and Pirker 267
To continue reading
Request your trial