Kosovo is a Country, and a Country Means a State, Rules the Court of Justice of the European Union

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In September 2020, the General Court of the European Union (GCEU) examined whether the 2019 admission of Kosovo as a ‘third country’ to the EU Body of European Regulators for Electronic Communications (BEREC) amounted to recognition by the EU of Kosovo as an independent State. The case was brought by Spain, a non-recogniser of Kosovo, against the Commission, who had decided on the admission of the National Regulatory Authority (NRA) of Kosovo to BEREC.

As I reported here in 2020, the GCEU had found that the concept of ‘third country’ within the meaning of the EU law could not be equated with that of ‘third State’. The GCEU found that the “concept of ‘third country’ [had] a broader scope which [went] beyond sovereign States alone, with the result that Kosovo [was] capable of falling within it, without prejudice to the position of the European Union or its Member States as regards the status of Kosovo as an independent State”. (para 36)

According to the GCEU, “the provisions of the EU law relating to ‘third countries’ [were] clearly intended to pave the way for the conclusion of international agreements with entities ‘other than States’. Thus, the European Union [could] conclude international agreements with territorial entities, covered by the flexible concept of ‘country’, which [had] the capacity to conclude treaties under international law but which [were] not necessarily ‘States’ for the purposes of international law. To claim the contrary would be to create a legal vacuum in the European Union’s external relation.” (para 30)

This was the first judicial pronouncement on the differences between a ‘State’ and a ‘country’ (under the EU law), and the rights and obligations that the latter has under public international law. The GCEU clearly established that countries, in addition to universally recognised States, are “international law actors”. It also explained that such actors are legal persons capable of concluding international agreements governed by public international law.

Spain appealed against the GCEU decision arguing, among others, that “the concepts of ‘third country’ and ‘third State’ are equivalent”. Spain maintained that “the term ‘third country’ [as used in the EU law] does not have a broader or different meaning from that of the term ‘third State’. Any other interpretation would be likely to transform the concept of ‘third country’ into an autonomous category of EU law, with a meaning that differs from that which obtains in international law, while States are the key subjects of international relations”. (para 35)

On 17 January 2023, the Court of Justice of the European Union pronounced itself on this case. The CJEU agreed with Spain that, according to EU treaties, there are no differences between countries and States. The Court reached this conclusion after looking at the interchangeable use of the two concepts under EU treaties (para 39) and the fact that in many EU languages, the term third country appears only as third States (para 40). However, the Court considered that Kosovo could be considered a country within the meaning of Article 35.2 of Regulation 2018/1971 (which concerns the cooperation of BEREC with third countries). According to the Court,

50. … for the purposes of ensuring the effectiveness of Article 35(2) of Regulation 2018/1971, a territorial entity situated outside the European Union which the European Union has not recognised as an independent State must be capable of being treated in the same way as a ‘third country’ within the meaning of that provision, while not infringing international law (see, to that effect, judgments of 24 November 1992, Poulsen and Diva Navigation, C‑286/90, EU:C:1992:453, paragraph 9, and of 5 April 2022, Commission v Council (International Maritime Organisation), C‑161/20, EU:C:2022:260, paragraph 32).

51. As regards Kosovo, in its advisory opinion of 22 July 2010, Accordance with international law of the unilateral declaration of independence in respect of Kosovo (ICJ Reports 2010, p. 403), the International Court of Justice concluded that the adoption of the Kosovo declaration of independence of 17 February 2008 did not violate general international law, United Nations Security Council resolution 1244 (1999) or the applicable constitutional framework.

While the Court could have elaborated further what it meant by not infringement of international law, one might understand it (especially in connection with the Court’s subsequent reference to the ICJ AO on Kosovo) in a way that Kosovo could be considered as a country because there was no illegality attached to its independence under international law. The CJEU chose not to delve into a further discussion on statehood. However, it acknowledged that the EU, on behalf of all Member States, had already agreed to enter into international agreements with Kosovo when it had signed, among others, the Stabilisation and Association Agreement. With this, the EU had recognised Kosovo’s “capacity to conclude such agreements”. (para 55)

Having confirmed that, the CJEU clarified “that treatment of Kosovo as a third country does not affect the individual positions of the Member States as to whether Kosovo has the status of an independent State that is claimed by its authorities”. The Court came to this conclusion by referring to the footnote indicated in the Stabilisation and Association Agreement with Kosovo which states that the Agreement “is without prejudice to positions on status, and is in line with United Nations Security Council resolution 1244 (1999)] and the International Court of Justice Opinion on the Kosovo declaration of independence”.

This may not be the most important judgment for the EU law (the relevant part concerns the powers of the Commission and BEREC, see paras 89 onwards), but it certainly is for international law and Kosovo. As regards international law, it clarifies that notions of “country” and “State” (at least under the EU law) are interchangeable. The EU self-contained regime has (this time) refrained from ‘setting’ new rules for the international legal order, at least on the question of subjects and actors of international law. As regards Kosovo, it confirmed that Kosovo can be treated as a “third country” under the EU treaties with the caveat that such treatment does not imply its recognition by five EU non-recognisers, namely Spain, Cyprus, Greece, Slovakia and Romania. The CJEU made this conclusion by referring to the ICJ decision on Kosovo, which rules out any illegality attached to Kosovo’s declaration of independence. In reaching that conclusion, the CJEU also referred to the fact that the EU, with the permission of all its member states, had already concluded several agreements with Kosovo. It remains to be seen whether these findings will have an impact on Kosovo’s future relations with the EU, especially given Kosovo’s recent application for EU membership, which may trigger discussions on the status of Kosovo by the non-recognising States.

Beyond Kosovo and the EU, the judgment confirms that issues of admission of new States to international mechanisms are separate from that of recognition. Namely, a State that is not recognised by all its member may join an international mechanism without affecting its bilateral relations with non-recognisers. In such vein, for example, Kosovo has joined a number of international organisations without necessarily altering its bilateral relations with non-recognising States.

Photo: “Court of Justice of the European Union main building and sign (Luxembourg)”, (Transparency International).

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