The main objective of the EurAsEc Court, as stipulated by article 8 of the Treaty to Establish the Eurasian Economic Community dated 10 October 2000, is to ensure that legislation of the Customs Union and the EurAsEc be implemented in a uniform manner. Today this issue is especially challenging from the viewpoint of developing foreign trade, since different law enforcement results in the objectives of integration which the Customs Union faces de facto not being met. What is the use of adopting unified customs legislation if different countries of the Customs Union implement it in different ways?
The EurAsEc Court is to exercise judicial control over how legislation of the Customs Union and the EurAsEc is implemented. The Court will ensure harmonised law enforcement when considering specific disputes and interpreting international treaties and decisions of the EurAsEc and Customs Union’s bodies.
It should be borne in mind that the jurisdiction of the EurAsEc Court and the procedures for considering disputes differ significantly depending on the subject matter of the dispute:
- International treaties effective in the EurAsEc and decisions of EurAsEc bodies; or
- International treaties which make up the legal and contractual framework of the Customs Union and decisions, acts or omissions by the Customs Union’s bodies.
International treaties effective in the EurAsEc consist of agreements entered into by five EurAsEc countries: Russia, Belarus, Kazakhstan, Tajikistan and Kyrgyzstan. These agreements are less important for the customs administration process than is the contractual basis of the Customs Union, which embraces the Customs Union’s Customs Code, agreements concerning preferences and customs value, and decisions of the Customs Union Commission (CUC) and the Eurasian Economic Commission (EEC).
While only governments may initiate disputes concerning how the decisions of EurAsEc bodies and provisions of treaties effective in the EurAsEc are implemented, business entities may challenge decisions, resolutions, acts and omissions by the EurAsEc bodies as well.
In addition, in accordance with the Statute of the EurAsEc Court (an agreement setting out the Court’s powers), the EurAsEc Court does not deliver binding interpretations regarding international treaties effective in the EurAsEc or decisions of EurAsEc bodies. However, as far as the implementation of the customs legislation of the Customs Union is concerned, the EurAsEc Court delivers binding interpretations, which can also be initiated by business entities. A business entity may not independently address the EurAsEc Court to obtain such an interpretation.
The EurAsEc Court may also deliver advice and explanations in relation to inquiries by EurAsEc states, EurAsEc and Customs Union bodies, and supreme judicial authorities. Unlike interpretations, such advice and explanations may be provided for general issues, without reference to any specific case. At the same time, they are given as recommendations.
Therefore, business entities may have recourse to the EurAsEc Court to protect their rights and lawful interests in the following cases:
- the business entity may independently go to the EurAsEc Court when a specific decision of the CUC or EEC is appealed against;
- if the business entity appeals against any decision, act or omission by the customs authorities and there is uncertainty as to how the customs legislation of the Customs Union is to be implemented, the business entity may petition for legal recourse before the EurAsEc to obtain interpretation of the provisions appealed against.
In relation to the first case it should be stressed that the Agreement of Legal Recourse to the EurAsEc Court entered into by the business entities stipulates that before addressing the Court it is mandatory to address the EEC with an inquiry why the relevant decision of the EEC (or the CUC) was implemented incorrectly. Only after a reply is received (or if no reply is received within two months) may the EurAsEc Court be addressed. Taking into account that the EEC has currently ceased to provide explanations to business entities concerning enforcement of the customs legislation of the Customs Union, an entity could use this tool to obtain an official statement from the EEC.
As far as obtaining an interpretation from the EurAsEc Court is concerned, it should be borne in mind that the Agreement on Legal Recourse to the EurAsEc Court entered into by the business entities does not provide for first, second and third instance courts to address the EurAsEc Court directly. Only supreme courts enjoy this right. Accordingly, a business entity has the right to seek interpretation only if it has reached the supervisory court. This stage, however, is marked by the problem of exercising this right. An overview of the judicial practice involving disputes with the customs authorities for the year 2012 yields the following statistics: out of over 400 decisions of commercial (‘arbitration’) courts, the Russian Supreme Commercial (‘Arbitration’) Court (SAC) considered on the merits only five decisions in a supervisory procedure (Resolutions of the Presidium of the SAC No. VAS-11405/11 dated 17 January 2012, No. VAS-11873/11 dated 7 February 2012, No. VAS-13049/11 dated 5 June 2012, No. VAS-2522/12 dated 24 July 2012, No. VAS-6813/12 dated 13 November 2012). Yet even when the SAC considers customs disputes, it may take ambiguous decisions. For instance, in the dispute featuring the provision from the Customs Code of the Customs Union being implemented with respect to the five-year period for conditionally released goods, the SAC vindicated the Russian customs authority without requesting the position of the EurAsEc Court (Rulings of the Russian Supreme Commercial (‘Arbitration’) Court No. VAS-5423/12 dated 9 July 2012 and No. VAS-17154/12 dated 9 January 2013). This decision was taken despite the fact that in Belarus and Kazakhstan this period commences when the goods are released, rather than from 1 July 2010. The Agreement on Legal Recourse to the EurAsEc Court entered into by the business entities directly states that if the supreme judicial authority is considering a case for which a decision cannot be subsequently appealed, this authority has no jurisdiction over the person’s petition and must refer to the EurAsEc Court the request for an opinion as to how customs legislation should be implemented (article 3(3)).
To date, the EurAsEc Court has taken two decisions (dated 5 December 2012 and 15 November 2012) which the appeal instance upheld and granted both petitions of the business entities. In other terms, the first practice in this area suggests that the EurAsEc indeed is an independent institution and, in addition, that the judges representing Russia are also quite objective in their decisions, rather than protecting the corporate interests of their country. Here, the Court has demonstrated a fair and impartial approach when implementing customs legislation. This means that the EurAsEc Court, unlike the CIS Court, has gained real power, demonstrating capable performance and functioning as an efficient instrument which those involved in foreign trade may actually use to protect their rights and lawful interests.