The EU COVID-19 Certificate and the Eastern Vaccines in the Light of Free Movement and Residence
As many of us have already heard it on the news, on 29 April 2021, the European Parliament (EP) adopted its amendments on the proposal for a regulation on a framework for the Digital Green Passport or better known as EU COVID-19 Certificate (Certificate), in contrast to the opinion of the World Health Organization (WHO). Under the articles of the proposal, the use of the designation ‘Certificate’ is an umbrella term since it covers three different types of information such as (i) vaccination certificate (Article 5), (ii) test certificate (Article 6) and (iii) certificate of recovery (Article 7).
According to the draft’s Recital, its intention is to guarantee the right to free movement as a key element of the European integration on the level of internal market (Treaty on the Functioning of the European Union, Article 26(2) TFEU) and also as a precondition for an economic recovery. Because the measures which were adopted by the Member States in order to limit the spread of the virus can be construed as restrictions of this fundamental right (Article 45(1) of the Charter of Fundamental Rights) and have a negative impact on citizens and businesses. Therefore, the European Union (EU) must establish a common framework which should be binding and directly applicable in all Member States. This shows that even a pandemic cannot justify the temporary reintroduction of border controls at internal borders.
In line with the above, the Preamble emphasizes that only those limitations of free movement – in accordance with Article 21(1) TFEU which implies that it is not an absolute right – are acceptable which facilitate the application of principles like proportionality and non-discrimination, while pursuing a ‘high level of public health protection’. Furthermore, free movement of people cannot be restricted if it does not pose a significant risk to public health, based on sound scientific evidence, since it would not be necessary to achieve the pursued objective.
Moreover, the proposal highlights that this Certificate is not a travel document (Article 3(3a)), therefore its possession shall not be a precondition to the exercise of free movement rights (Article 3(3b)). Also, Article 10 of the proposal states that holders of the certificates cannot be subject to any additional travel restrictions like quarantine, self-isolation, a COVID-test or any discriminatory measure.
Let’s see whether these objectives set out in the Recital meet the rules of the regulation regarding the vaccination certificate. Under Article 5(1) of the proposal each Member State shall automatically issue a vaccination certificate to a person to whom a COVID-19 vaccine has been administered.
However, the question arises: what about the type of vaccine? Pursuant to the EP’s amendments only those vaccination certificates can be accepted by a Member State which confirm that their owners are vaccinated with a COVID-19 vaccine having been granted marketing authorisation conforming to Regulation (EC) No 726/2004 (Article(5)). To sum up, with those vaccines that are authorised by the European Medicines Agency (EMA). At this point, only Pfizer, Janssen, Moderna and AstraZeneca have been authorised by the EMA. Other vaccines can also be accepted by a Member State if they have received a WHO Emergency Use Listing (Article 5 (5)). At this point, among eastern vaccines – widely used by Member States like Hungary – only Sinopharm is listed, the Russian Sputnik V is not even in progress yet.
In my opinion, this differentiation between vaccines raises a few legally relevant questions and for a better understanding, we must look at Directive 2004/38/EC on the right to free movement and residence. According to the Directive’s Preamble (5), this fundamental right can only be exercised under objective conditions of freedom and dignity, therefore any unjustified distinctions are violations of human dignity. Besides that, in its Article 24 the Directive also contains equal treatment with the nationals of the host Member State. Under Article 27(1) the legitimate restrictions of the right are listed as public policy, public security and public health. The structure of the Directive suggests an interpretation on these general principles as Article 27(2) states that the first two principles shall comply with the principle of proportionality and the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society.
Contrary to the above, public health is separately regulated in Article 29, as it affirms particular diseases which could justify measures on the freedom of movement, such as diseases ‘with epidemic potential’ as defined by the relevant instruments of the WHO and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. In our case, the first disease group is relevant, since the WHO declared a public health emergency of international concern (PHEIC) on COVID-19 on 30 January 2020. Above all, the Preamble of the Certificate proposal states that only a significant risk to public health could be an acceptable reason to apply limitations on free movement and residence.
As Recital (7a) admits, at this stage of the pandemic, it is still unclear whether vaccines prevent transmission of COVID-19. Therefore, in my opinion, until we have sound scientific evidence about each vaccine’s safety and effectiveness, we should not differentiate between them and, through them, between citizens. I do not see any reason why we should think that eastern vaccines or EU citizens who got vaccinated with them present a significant risk to public health, why each Member State should decide themselves if they take that risk through negotiating bilateral agreements on acceptance.
Even if Article 1 of the proposal states that it does not establish any additional formality or requirement for exercising free movement, it could restrict it, since those EU citizens who do not hold a Certificate can be required to comply with quarantine orders or to get tested for COVID-19, even though they did get vaccinated (even if not with the preferred vaccines). In the joined cases of C-570/07 and C-571/07 (Reasoning 44) or C-108/09 (Reasoning 58) the Court of Justice of the European Union pointed out that Member States are obligated to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved.
From this aspect, the EU tries to strike a balance between its own values and interests. On the one hand, it wants to provide a measure of discretion to the Member States in connection with vaccines which are not authorised by the EMA but listed by the WHO with a rhetoric as a risky choice. On the other hand, the Proposal determines the principle of non-discrimination as well as the necessity and proportionality of restrictions on free movement in its Recital but seemingly forgets to work them into the normative text of the regulation.
Before finally giving a green light to the Green Passport academically speaking, such questions of inconsistency should first be addressed more thoroughly.
Luca SEVARACZ is a Hungarian fourth-year law student at the University of Szeged, Hungary. She is currently a teacher’s assistant at the Institute of Public Law. Her work experience includes voluntary work at different non-governmental organizations as well as an internship at the Office of the National Assembly. She was awarded 3rd place in one of the sections of Constitutional Law at the Scientific Students’ Associations Conference in 2021. She is the Vice President in charge of Academic Activities in European Law Students’ Association (ELSA), Szeged.
Her current research is on the position of a neutral state within the election campaign as far as the jurisprudence of the Hungarian Constitutional Court, the Curia and the National Election Committee are concerned.
On 23 March, the Hungarian Constitutional Court decided on a certain case based on a judicial initiative for norm control. The question of the three judges initiating the procedure was the lawfulness of a new norm in the statelessness procedure. The judges asked whether this norm is in line with the 1954 Convention relating to the Status of Stateless Persons.
Statelessness and Hungary
The international conventional system for providing protection for humanitarian migrants is very complex. This blogpost focuses only on the Convention relating to the Status of Stateless Persons. Protection for those who can not access any citizenship is guaranteed by this Convention. Stateless people could be in total legal and social trap without this protection.Hungary joined the Convention relating to the Status of Stateless Persons on 21 November 2001. The Convention’s goal is
“…to ensure that stateless people enjoy a minimum set of human rights. It establishes the legal definition of a stateless person as someone who is “not recognized as a national by any state under the operation of its law.” Simply put, this means that a stateless person is someone who does not have the nationality of any country.”
In April of 2021, there were 96 states parties to the Convention. The UNHCR treats this topic as a matter of priority: in 2014 the Campaign to End Statelessness in 10 Years was launched. We are in the middle of this campaign.
UN High Commissioner for Refugees António Guterres and UNHCR Special Envoy Angelina Jolie published an Open Letter in which the signatories argue why ending statelessness is an utterly important goal for humankind. So they say:
“Statelessness can mean a life without education, without medical care or legal employment . . . a life without the ability to move freely, without prospects or hope […] Statelessness is inhuman. We believe it is time to end this injustice.”
It looks like the Hungarian legislator obviously agrees with these goals since protection may be granted to stateless applicants if they fit to the conditions of section 78 in Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals.
Nevertheless, in the last ten years, only a low number of stateless statuses were provided based on the information of the National Directorate-General for Aliens Policing (NDAP). 111 persons were recognized altogether in this period.
The numbers suggest that statelessness has never been a significant social question in Hungary, only a handful of people were concerned by this important human right.
Nevertheless, the authorities had a relevant legal practice in providing this humanitarian status for those who are eligible.
A concise description of granting stateless status can be found on the webpage of NDAP. Based on the above-mentioned law it sets forth that
the applicant shall not be entitled to stateless status and his/her application shall be refused by way of a formal resolution if his or her residence prejudices or endangers the national security of Hungary.
This norm leads to the question before the Hungarian Constitutional Court, examined below.
The procedure and the conflict
A application for stateless status submitted by an applicant from the territory of Palestine was refused. The NDAP made its decision based on the opinions of the Constitution Protection Office and the Counter Terrorism Centre.
The applicant turned to the Budapest-Capital Regional Court and argued that the above-mentioned point c) is not in line with the Convention. Article 24 of the Fundamental law says that the Constitutional Court shall examine any law for conflict with any international treaties. Therefore the question shall be decided by the Constitutional Court since its essence is a possible conflict between the Hungarian law and the Convention.
Section 32 (2) of Act CLI of 2011 on the Constitutional Court says that judges shall suspend judicial proceedings and initiate Constitutional Court proceedings if, in the course of the adjudication of a concrete case, they are bound to apply a legal regulation that they perceive to be contrary to an international treaty. This happened in this case since the Budapest-Capital Regional Court perceived that there might be the following collision.
Article 1 and 2 of the Convention exhaustively specify the reasons for refusing a stateless applicant. These reasons are transposed into Hungarian law by Section 78 (1) a) of Act II of 2007 on the Admission and Right of Residence of Third-Country Nationals in the following way. “A petition for stateless status shall be refused by way of a formal resolution if the petitioner falls within the scope of Paragraph 2 of Article 1 of the United Nations Convention relating to the Status of Stateless Persons signed in New York on 28 September 1954, promulgated by Act II of 2002.”
Point b) of the same paragraph says that a “petition for stateless status shall be refused by way of a formal resolution if the petitioner terminated his/her nationality deliberately, with a view to obtaining stateless status.” In this way, the legislator shall avoid application in bad faith.
The Budapest-Capital Regional Court stated that any additional condition is not in line with the Convention since this would be such a new condition that would restrict access to the human right guaranteed by the Convention.
The Constitutional Court (HCC) had to decide whether this is a new restriction over the Convention or a condition which is its inherent part.
The answer
The HCC argued that the Convention itself alludes to national security or public order. These can lead to a refusal to issue a travel document (Article 28) and can also constitute a reason to expel a stateless person based on the Convention (Article 31). The Constitutional Court concluded that the examination of an applicant from viewpoints of national security or public order is in line with the Convention since it is mentioned in these specific places.
Furthermore, the HCC argued that the Convention provides wide freedom to the party states in defining the procedure of statelessness determination. The Constitutional Court decided that the examined point c) is a procedural reason and it does not restrict substantial human rights.
Based on these arguments, the Constitutional Court provides constitutional viewpoints for the right interpretation of the law framing the proceedings before the competent authorities and regular courts. If the authorities decide that the presence of the applicant in the territory of Hungary prejudices or endangers the national security of Hungary they have to refuse the application on procedural grounds without examining substantive ones. Further examination is not allowed since procedural barriers emerged.
Criticism
Firstly, the HCC refers to the fact that the Convention itself mentions national security or public order. However, these reasons are mentioned in Article 28 and 31 of the Convention. (i) The Contracting States shall issue to stateless persons lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require. (ii) The Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public order.
These are specific norms and not general rules within the Convention. The lex specialis derogat legi generali principle means that if there is no specific regulation, general regulation shall be applied. There is no general regulation in the Convention for applicants posing a danger to national security or public order. The Constitutional Court widened the interpretation of the specific norms in order to apply them to the Hungarian regulation. It might not be in line with the Convention. It would have been useful if the Constitutional Court could have collected international comparative examples to underline the above-mentioned argument. International examples and UNHCR interpretation on national security or public order are absent from the decision.
Secondly, Hungary could have ratified the Convention with reservations about national security and public order in 2001, but it did not. In this sense, this de facto reservation could violate the pacta sunt servanda principle too since Hungary applies a new condition that was not part of the ratified agreement.
Thirdly, the distinction between substantive and procedural law from this point of view seemscontroversial. Procedural rules shall guarantee a substantive right, not hinder its access. Obviously, there are procedural rules which can hinder access to a substantive human right but their fulfillments shall depend on the applicant. If the applicant does not fill out a proper form or does not provide the required data or information in good faith, etc. access to the substantive right can be denied. However, a procedural barrier that cannot be changed or influenced by the applicant is par excellence a restriction on the given human rights. Applicant has to be able to fit the procedure in order to consider him as a person who have a real access to the substantive human right. If the applicant can be denied in a procedural ground which cannot be influenced or changed by him substantive right can be never achieved. The procedure can be strict but it cannot have such a condition which cannot be fulfilled by an applicant who have the substantive right. In this certain case, a person who has no citizenship shall be protected by Hungary as a stateless person. If there is a procedural barrier for a person without citizenship stateless status can be never be achieved. This way, the HCC might deprive applicants of access to a human right guaranteed in an international treaty.
Furthermore, in this procedure, the HCC could not deal with the fact that the opinions of the Constitution Protection Office and the Counter Terrorism Centre were not open to the applicant as data protected by the Act CLV of 2009 on the Protection of Classified Information. It means that the applicant had no information on why her access to the stateless status was refused and it also means that she could not challenge the lawfulness or factualness of these opinions in any redress procedure. Although the accessibility of the opinions of the Constitution Protection Office and the Counter Terrorism Centre was not the focus of this case, the Constitutional Court could have put it on the scale in order to define what that procedural barrier means for the substantive right.
Obviously, granting humanitarian status for persons posing a threat to the national security or public order cannot be a goal or even a side effect of a human right but there are security and police procedures regulated by the Act XXXIV of 1994 on the Police and by other laws to prevent these risks. The stateless status could be granted and the persons concerned could be examined within the regular national framework before a court within the national guarantee system of criminal procedure law. A person concerned can even be in detention till their expulsion under the Convention, if it is unavoidable from the criminal law aspect. This kind of approach would be much more transparent and would not restrict access to a human right which is granted in an international treaty. There might be applicants who are really dangerous but it can be proved and decided only in a transparent, fair court procedure. Stateless persons who are condemned in such a procedure should be protected as stateless based on the Convention but treated by the law enforcement. Statelessness can be decreased but criminals cannot threaten our community in this way. Moreover, it could demonstrate that Hungary is committed to take a stand in ending statelessness by 2024 and do not restrict the access to the procedure.
The author is a PhD student of University of Szeged. He graduated in the University of
Debrecen as a lawyer in 2015. He finished his LLM on EU law in Deák Ferenc Institute of
Pázmány Péter Catholic University.
AttilaSZABÓ’s PhD topic is the connection between migration and rule of law. However, he is
interested in other constitutional law questions and the rule of law in general. The author’s
last research was about the role of local-governments in integration of third-country nationals
Thoughts on a recent opinion by Advocate General Bobek
On 4 March 2021, in the Joined Cases C-811/19 and C-840/19, the opinion of Advocate General Michal Bobek was delivered to the CJEU, which was already mentioned by one of the authors of the Constitutional Discourse, Márton Sulyok. According to Sulyok, if the CJEU accepts the Advocate General’s position, it could put the entire European system of constitutional justice at risk, at least as we know it today. It is a question of whether the CJEU recognizes these potential dangers. The question arises why the CJEU’s decision in these cases could be a milestone in this process if the Court accepts the opinion of the Advocate General? I will try elaborate on this a little below.
The main proceeding is a case concerning the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania) and the Constitutional Court of Romania. The outcome of the case might affect the financial interests of the European Union, therefore initiating the preliminary ruling procedure was necessary. One of the questions that the CJEU must answer is whether the primacy of European Union law must be interpreted as a principle permitting a national court to disapply a decision of the constitutional court. According to the AG’s opinion, under a strict set of criteria, the principle of primacy of the EU law shall be interpreted as allowing a national court to disapply a decision of the national constitutional court, which is binding under national law, if the referring court finds it necessary in order to comply with the obligations deriving from directly effective provisions of EU law. To see the whole picture, the details of the case affect upon a number of financial and corruption issues, however addressing these is not intended in the context of this post.
Apart from examining the details of the case in the main proceedings, one of the main ideas of the Advocate General’s opinion is the financial interests of the European Union and the principle of primacy as well as the decisions of the constitutional courts of the Member States. According to the Advocate General, “in the context of the present case, the third question in Cases C‑811/19 and C‑840/19 should be answered in the affirmative: the principle of primacy must be interpreted as allowing a national court to disapply a decision of a national constitutional court, which is binding under national law, if the referring court finds it necessary in order to comply with the obligations deriving from directly effective provisions of EU law.”
It is true that the Advocate General’s reasoning has been delivered in a special context: in order to protect the financial interests of the Union. Based on the reasoning, “the elements to be taken into account when assessing the compatibility of national provisions with the requirements of Article 325(1) TFEU include: first, the normative and systematic evaluation of content of the rules at issue; second, their purpose as well as the national context; third, their reasonably perceivable or expected practical consequences, stemming from the interpretation or the application practice of such rules (thus independent from any statistical estimation of the number of cases actually or potentially affected); fourth, the fundamental rights and legality forming part of the internal balance in the interpretation of the material requirements imposed by Article 325(1) TFEU. However, any national concerns invoked in this regard must reflect a reasonable and genuine concern for a higher rights protection. Moreover, their potential impact on the interests protected by Article 325(1) TFEU must be proportionate.”
The protection of the EU’s financial interests is an evident, necessary need, regarding which, of course, the CJEU, as guardian of the Treaties, also has competence. However, the question arises: is it possible for the CJEU to rule that an ordinary national court may set aside the application of a decision of a national constitutional court? In addition to the serious problem of powers, does the necessity-proportionality test allow this? Regardless of the result to be achieved, unless the end justifies the means. At the same time, it is hard not to think about what happened on 5 May 2020, when a Constitutional Court of a Member State declared a decision of the CJEU inapplicable, so the answer cannot be left to the supranational court either. This idea, however, leads away on a long tangent, so instead, let’s take a closer look at the part of the Advocate General’s opinion quoted.
The Advocate General’s position essentially presupposes a two-dimensional space: European Union law and national law in which the former precedes the latter. The approach would not be a problem for a federal legal order, but the supranational nature presupposes a much more complex system. A legal order in which only the EU institutions, including the CJEU, can act within the scope of the powers delegated by the Member States and in which we must talk about the coexistence of the EU legal order and the constitutional systems of the Member States. In this system, the provisions of national law form only one layer, which is covered by the principle of the primacy of EU law under the provisions of the Treaties. This is beyond debate.
But does it follow from the treaties that the Member States have delegated to the CJEU the power to declare a decision of a constitutional court of a Member State inapplicable? What is more, in a legal order one of the main values of which is the rule of law, is it possible to imagine a scenario in which the provision of a supranational institution with problematic democratic legitimacy would preclude the decision of an organ with strong democratic legitimacy whose function is to ensure the requirement of legal certainty as part of the rule of law?
After all, by detaching the Advocate General’s position from the umbrella of financial circumstances, this is one of the practical consequences. The Advocate General’s position does not distinguish between the constitutional rules of the Member States and national law, but treats them as a single factor. It does not treat the constitutional courts of the Member States as a fundamental constitutional institution designed to ensure, inter alia, the rule of law, it simply places them in the category of the superior courts of the Member States and as a quasi-super-court places itself above them. But is it necessary to open Pandora’s box? Is this the right way?
The national constitutions of the Member States represent a value that embodies the uniqueness of the Member States, the diversity in unity. Moreover, European integration is in itself a special formation that expresses the unity and future of these different nations, the so-called the unity in diversity. The two levels of the legal system (Member State and EU) must coexist while respecting both the sovereignty of the Member States and the fundamental values of the Union. There are unquestionable values and legal principles in Europe that are beyond doubt, such as the protection of sovereignty and human dignity. However, there are a number of challenges facing modern European legal system(s) that require dialogue to be resolved.
In the EU system of multilevel constitutionalism, a long-standing debate on integration surrounds the conflict between EU legal order and the constitutions of the Member States. However, the issue concerns not only the relationship between the sources of law, but also the relationship between the authentic interpreters of these sources. Namely, the relationship between the CJEU and the national constitutional courts, which is not a system of relations that could be established in an exact way on the basis of current provisions of the Founding Treaties.
It is a system of relations in which the CJEU itself has extensive case law and the constitutional courts of the Member States have also established their positions.
Milestones in the relevant case law of the CJEU are Van Gend en Loos (C-26/62) and Costa vs. ENEL (C-6/64), in which the CJEU set out the nature of the new legal order of European Community law and the obligation to apply it by the courts of the Member States and setting aside the national law if it is contrary with the EU legal order. In Internationale Handelsgesselschaft (C-11/70), the CJEU has already articulated the primacy of European Community law over the constitutions of its Member States, which was confirmed in Simmenthal (C-106/77) by stating that ordinary courts in the Member States cannot wait to the legislator or the Constitutional Court in order to resolve the conflict but must do so themselves.
The development of the case law of the CJEU therefore runs a well-defined curve and purpose in this area, which is to ensure the integrity of EU law. However, the question is whether the CJEU takes over the position of Advocate General Bobek, and if yes, what is the purpose behind this decision? Securing the European Union’s financial interests is not a surprising goal, as the EU was born primarily from and for economic purposes. The question, however, is whether it is worth giving up the idea of unity in diversity and create a union that is indifferent to the nature of the Member States, especially at a price that requires a system of rules that can no longer be read from the Founding Treaties.
In my view, the case-laws of the CJEU and national constitutional courts must coexist on an almost equal footing and not in hierarchy with each other. Constitutional justice is a fundamental part of the constitutional systems of the Member States (so of the EU as well), and at the same time it is designed to ensure the requirement of legal certainty, which is a key element of the rule of law as a fundamental value of the European Union. Therefore, it is necessary to establish a system of relations with the CJEU through the instrument of solidarity and dialogue, involving the national constitutional courts, which presupposes the principles of collegiality, instead of the potential hierarchical relationship which seems to be outlined on the basis of the Advocate General’s opinion.
Perhaps it can be seen from my critical approach that I do not agree with the Advocate General’s position. However, this does not mean that I disagree with the need to deepen the integration process or to protect the financial interests of EU. On the contrary, these are goals that shall be pursued in the interest of stability, as the main guiding principle. Stability cannot be achieved by creepingly expanding the powers of the EU institutions ensured by the Treaties. Moreover, stability cannot be achieved either if we assume quasi-competing powers between the CJEU and the constitutional courts of the Member States. In this system of relations, we need to realize the delicate balance that keeps the integration process in the right direction, which is in line with the constitutional identity of the Member States. However, this does not mean that asking questions is not necessary. It only means that the questions shall be answered together. The answer is not that only can be left standing at the end. This is how duels are concluded.
Norbert TRIBL is an assistant research fellow at the University of Szeged (Hungary), Institute of Public Law as well as a consultant at the Constitutional Court of Hungary. Since 2020, he has been the editor of the Constitutional Discourse Blog.
Are newborn screening and the reception of the treatment for SMA disease fundamental human rights?
I.Introduction
Since the 1960s, newborn screening has been around and saved lives.[1] Countries have been continuously expanding the range of screened diseases after the baby’s birth, in which SMA is the newest one. We could be optimistic and patient as health care policy and regulation always change in parallel with innovation, however, some countries need to make the first steps in order to motivate the others. Some American states have already changed their legislation to dedicate financial resources, technology, and administration system to reaching this goal. Since the latest, life-saving infusion, Zolgensma entered the market, newborn screening gained more significance. As its price hit records, it costs 2,1 million USD (ap. 700 million HUF), the majority of patients cannot afford it. Zolgensma is a life-saving treatment, so the reception of this drug is supposed to be a fundamental human right. Moreover, SMA disease has lethal versions, where these newborns cannot celebrate their 2nd birthday (without receiving Zolgensma in time). To prevent this situation and to give the best chances to discover SMA as early as possible, newborn screening for this disease should be also considered as a fundamental right to health.
II.SMA and newborn screening
Spinal muscular atrophy (SMA) is caused by a mutation or an absence of the survival motor neuron gene (SMN1). In a healthy body, it produces a protein for the function of the nerves, which control the muscles. Without SMN1 gene, the muscle becomes weaker and weaker until it atrophies. The disease becomes life-threatening when the basic life support organs such as the lungs, the heart, or the elements of the digestive system cannot function anymore. Nevertheless, the illness does not harm the patient’s mental health.[2]
SMA can affect anyone from any race or gender. It is the leading genetic cause of death among newborns in the USA. This illness affects 1 in 11,000 births, and about 1 in every 50 Americans is a genetic carrier.[3] People can find out with a genetic test whether they are a carrier or not. If they are thinking about starting a family and both of the partners are carriers, they have a 25% chance that their baby will have SMA. Unfortunately, carrier testing is available only for people with SMA history in their family.[4]
Newborn screening is the best option to discover whether the infant suffers from SMA disease. Only the US make this test routinely[5] among other genetic diseases, every other countries in the world do not have the appropriate health policy and budget for automatically implementing it. In most of the European states parents can only discover this illness with the appearance of the first symptoms, usually months after birth. Unfortunately, treatments have weaker outcomes if the SMA is discovered later.[6] When doctors cannot start in time applying medical treatments and physiotherapy, the maintenance of the muscles has worse chances. That can be the reason why most of the American states have already implied newborn screening for SMA.[7] Besides, the test is not particularly complicated to implement. They only need a few drops of blood from the newborn to take it onto a special filter paper (Guthrie Card) and then analyze it in the laboratory.
In the United States, general newborn screening is mandatory, parental consent is not required. Based on the two foundational legal power, the states have the responsibility to protect their citizens. The police power protects “the health, safety, morals, and general welfare”, the “parens patriae” (alias: parent of the nation in law) ensures the rights of children and vulnerable persons to health and well-being. The latter gives the state the right to intervene against an abusive or negligent parent to protect the child. These state privileges and responsibilities are weighed against parents’ rights to make decisions about their minor children’s welfare. The parents can accept or refuse medical treatments according to their views.[8] Even if it would be a more modern regulation when newborn screening would be an option and not an obligation,[9] the test makes no harm for the child and it can save or improve their lives, thus there is no reason to refuse it. It is in the interest of the infant, that protects their rights to health and life. Since 2018, 23 American states screen newborns against SMA – besides other genetic, endocrine, and metabolic disorders, and hearing loss, and critical congenital heart defects (CCHDs).[10] Further 13 states have already adopted the program and they seek to activate it within 2 years from 2020. Another 3 states have trials in this field.[11] In order to succeed, the Advisory Committee recommends the conditions to the Commissioner of Health, who makes his arguments at the Public Health Council, where they vote about this question.[12] According to the wish of the SMA community, all states will include the SMA test in newborn screening in the future.
III.Fundamental rights to health and life
At a European Cystic Fibrosis Society’s conference, a question was posed and remained unanswered: is newborn screening a basic human right?[13] They based this theory on that if doctors detect this genetic illness less than 2 months after birth, the child has better chances to survive. That could be the same case with SMA, just nobody asked this question at a conference yet. It is an actual topic particularly now when a modern treatment, Zolgensma is accessible and must be given before the baby’s second birthday. The facts, that the only medicine on the market which can give a chance for life has an age limit, and that its price is 2,1 million US dollars that need time to be collected, support the early discovery of this lethal illness.[14]
Having a look at it from a broader perspective, can we say that health care, whithout the patient could not live a whole life, is a fundamental human right? If yes, then providing it is a duty of the state. From a narrower perspective, is early detection of a lethal genetic disease a basic human right? After several debates and studies, we can answer “yes” to this question if four conditions are presented: 1) if the child is born in a region where the questioned disease is relatively common (at least 1:10.000 in the case of cystic fibrosis); 2) the newborn screening program exists there or can be created; 3) in case of a positive test, there is an available treatment; 4) sustained funding is available. We must answer “no” to the question above if it causes more harm than good, when the regional readiness does not exist or when there is no available funding, service, or treatment.[15] Taking into consideration that we have talked about the United States, of whom all of the four points are true, making newborn screening available for every patient would be a duty. To continue with, ensuring free access to life-saving treatment would also be its duty. Zolgensma is expensive and an average family cannot afford it, it costs 33 times more than the national per capita income in the US.[16] Why does the child’s life depend on their parents’ income? Charities and government agencies funded the research of this innovative gene therapy to benefit from it, to save lives. If newborn screening reveals that the child suffers from SMA but the parents do not have the source to buy it, what is the point of the test? Patients suffering from other types of SMA do not need gene therapy to survive, nonetheless, it is beneficial for them too to discover their illness at birth to be able to start the necessary treatments. However, half of the SMA patients are suffering from the most serious form which does not give them a chance for life after 2 years without gene therapy.[17] Zolgensma offers the best results besides Spinraza, another available and expensive gene therapy which is needed to be given regularly throughout the life of the patient.[18]
IV.The right to health in international treaties
Although the right to health is a social right, it is difficult to determine what it covers. It can be the access to health services, necessary resources to achieve health, medical self-determination, the ability to resist conditions or policies that endanger health, transparency and health information, informed consent, the right to decision-making, and accountability for health programs and policies.[19] The right to health must be specified to make it enforceable. However, it cannot be determined without other human rights, as declared in Point 2 in General Comment No. 14 to Article 12 of The International Covenant on Economic, Social and Cultural Rights (ICESR) (1976): …the right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information, and the freedoms of association, assembly and movement. These and other rights and freedoms address integral components of the right to health.[20]
Article 25 of the Universal Declaration of Human Rights (UDHR) (1948) states that „everyone has the right to a standard of living adequate for the health and well-being of himself and his family,” including medical care. Article 27 adds that everyone has the right to “share in scientific advancement and its benefits”. The UNESCO Universal Declaration on Bioethics and Human Rights (2005) also asserts that “the enjoyment of the highest attainable standard of health” is a fundamental human right, and that “access to quality health care and essential medicines” is required “because health is essential to life itself and must be considered to be a social and human good.” Furthermore, “the promotion of health and social development for their people is a central purpose of governments that all sectors of society share”. The ICESR recognizes the right to the “highest attainable standard” of health with specific provisions for the reduction of infant mortality and the prevention, treatment, and control of disease declared in Article 12. According to these declarations, Zolgensma must be given to every sick infant as the reception is their basic human right to life.
Article 24 (2) of the Charter of fundamental rights of the European Union protects the rights of the child. The child’s best interest, protection, and well-being must be a primary consideration when either public authorities or private institutions take action. The Convention on the Rights of the Child[21] also supports this argument, adding in Article 24 that children should enjoy the highest attainable standard of health. State parties should take appropriate measures to diminish child mortality and to combat disease with the application of readily available technology.
The World Health Organization publishes every two years a list of essential medicines that contribute to basic health care and support universal access to such treatments.[22] The list of essential drugs for children has a separate document. Among the aims of the WHO, they set out the improvement of access to essential medicines and the prevention of non-communicable diseases.[23] They support the research and development of new health projects and working to remove barriers to health services. In this way, they could urge the development of newborn screening, and negotiate the price of life-saving drugs. SMA is a genetic disease, not infectious, so its prevention is assumed to be amongst the WHO goals. Furthermore, its treatment, Zolgensma, is an essential medicine, without the patient suffering in a serious SMA-category could not survive. However, we cannot find it on the essential medicine list.
V.Summary
Prevention should always come first before treatment. It would be beneficial for the state as they would have less material expenditure for life aids, hospitalization, therapies, and medication for the patients. Public policy always needs time to catch up with technology, even when the standard of care is clear. In the case of newborn screening, this standard is getting more and more developed, having a look for example at the latest treatment for SMA disease, Zolgensma. The medical sector can not only precisely determine the illness, but they can also cure it. So, it is already two steps for the legislation: to diagnose and to medicate, which is not that easy to handle.
The universal rights impose three obligations on states: Firstly, states must respect this right. Second, states must protect the right to health, for example by taking measures to prevent intervention. Furthermore, states must facilitate and promote them.[24] SMA is a common genetic disease, which can be lethal. With newborn screening, the illness can be discovered easily the earliest as possible in order to start the necessary treatments. The latest medicine can offer a whole life to the patient, however, it is the most expensive in the world, for the moment. To let newborns enjoy their fundamental rights, newborn screening should be made automatically. As states already do it for other diseases, it would not be a big reform in the public health sector. At last but not least, life-saving gene therapy should be offered by the state to the patients to ensure their basic human rights to life. These conclusions are based on charters of several international treaties and targets of world organizations. Countries would only need to reorganize their budget for reaching these goals.
Blanka BARTOS: I received her law degree (Bachelor, Master 1, 2) in 2017 at the University of Szeged, Hungary. I also obtained an LL.M. at the University of Toledo (USA) in American legal expert training and Panthéon-Assas University in Paris, France, in French, European and international business law. Currently,She is a Ph.D. candidate at the University of Aix-Marseille.
This January, listening to the optimistic start-of-the-year hum in my ears, despite COVID, I wrote that there surely are some lessons to be learned from all of those issues, good or bad, that surrounded, courted, then consumed some constitutional courts around the globe in 2020.
Some of these courts were met by harsh accusations with populist undertones from academia, politics or civil society, some others for merely standing their ground in a difference of opinion regarding European integration or domestic political power struggles. There have been instances where political discourse and then action reached the insides of these courts and interfered with their independent operations as well. While this is no cause for happiness for someone who courts these institutions from a distance, I still think that the status quo needs to be addressed in terms of lessons listened, heard and then forgotten.
Now, I don’t mean to be insensitive using death as an overarching theme for my post in these trying times, but the phrase “courting death” carries an important message. Whether external or internal, all actors engaged in constitutional justice should have a compass that navigates them in facing certain problems, assuring they avoid certain death. It is one thing to be daring and then called careless or subversive, and another to be circumspect and then called “captured”. Or maybe there isn’t even a difference these days…
I ended my January note on this issue (when courts actually become captured, despite popular misnomers or misinterpretations in this context), so in this spirit, I tried to trace almost all elements of my 2020 end-of-year “list of lessons” for a Q1 assessment and check where these courts and their critics stand after a few months. I let all those who read this be the judges of what follows.
Courting Death and the Next Generation
After almost every European constitutional scholar cried “death” regarding the European integration after the PSPP (or Weiss II) decision, the “integrational responsibility” (Integrationsverantwortung) of the German Federal Constitutional Court (GFCC) has apparently lead them to ban the Bundespräsident from signing a domestic law approving the 2020/2053 Own Resources Decision (ORD) of the Council (regarding the activation of NextGenEU) supposedly designed to resurrect Europe post-COVID.
How they did so, however, is a bit surprising: through a press release, stating that until the GFCC’s decision is reached on a temporary injunction, the President is precluded from signing the law. Now, first we must concede that temporary or interim measures are not strange among legal consequences to be imposed by constitutional courts. Secondly, however, such an action without express justification seems a bit out of the ordinary, so it is perhaps understandable that in the immediate aftermath, legal blogs obviously had a field day with this decision. Among others, René Repasi on EU Law Live has written a nice summary of the issues. When I opened the decision, to my surprise, there was no justification written for it. (I am not privy to whether this is considered standard in their work, so I was surprised.)
Regardless of what we might think of the validity of the constitutional ultra vires challenge coupled with another round of constitutional identity defenses (based on which many have argued that the GFCC courts the death of integration by doing so in Weiss II), one might just hear bells (not church ones), given that an erga omnes decision of such a national constitutional court appears with an operative part that bears quite the weight, but with a justification that is “coming soon”. Urgency is certainly a decisive and understandable factor with these interim decisions, but it should not overwrite the need for – at least superficial but nonetheless immediate – justification.
Repasi says that “it is not unusual that the BVerfG decides on the constitutionality of a draft agreement before the signature of the president since this is the only way the binding force of a ratification under public international law can be avoided before the Constitutional Court has decided. […] Whether this has happened with regard to the law approving the Own Resources Decision is unclear.” The standard operating protocol for similar situations is described as a “hanging decision” (Hängebeschluss), intended to secure legroom for the Court to form an opinion.
To make a relevant comparison, however, allow me to take a brief tangent. The Hungarian Constitutional Court (HCC) – oftentimes blamed for being heavily reliant for inspiration on the GFCC’s case law in integrational thinking and constitutional identity – also may apply similar consequences of a temporary nature, and to my knowledge had done so twice since its new powers were created in harmony with the new Fundamental Law. [31/2012 (VI.29.) AB regarding the Family Protection Act, with relevant justification and 2 dissents (!) at the time of publication; 19/2013. (VII. 19.) AB regarding new rules of national security checks, with justification, at the time of publication]
According to the HCCA (Act CLI of 2011), if – in reviewing the conformity (with the Fundamental Law) of laws that have been promulgated but have not yet entered into force yet – the Court „considers it probable that said [law] is contrary to the Fundamental Law, it may exceptionally suspend the entry into force of the legal regulation or provision thereof specified in the petition, provided that the avoidance of serious and irreparable damage or disadvantage or the protection of the Fundamental Law or of legal certainty necessitates immediate measures.” The fact that, in the Hungarian case, promulgation has already taken place means that the HCC would never be in a position to prohibit the President of the Republic from anything let alone signing a law, as it may only suspend entry into force.
In the sense that a decision on the merits of such cases still needs to be reached, whereby the suspension will terminate (mind you, automatically after 180 days, if no decision is taken regarding its prolongation), this procedure also qualifies as a Hängebeschluss. “If the Constitutional Court does not annul the legal regulation or the provision thereof, in its decision it shall set the date of the entry into force of the legal regulation or the provision thereof.” [Extracts cited from Art. 61 of the HCCA, for further details, please refer to the legislative text indicated above. In both previously mentioned cases, the provisions affected by the interim measures have been annulled by 43/2012 (XII.20) for the first case and by 9/2014 (III.21.) for the second.]
Who knows what the future brings in this respect as on 31 March, the Hungarian Government (through the Minister of Finance) has submitted a draft law on the 2020/2053 Own Resources Decision, inserting it into the Hungarian legal system. I am curious to see whether the Constitutional Court will be called upon to give their interpretation. As to the German solution applied by the GFCC, it was said above that it is intended to provide them with legroom in forming an opinion. Since this is not yet known, and there are at least three clearly marked paths along which this case may develop (See: Repasi’s article, above), we might need to wait until Q2 to make an assessment that can account for the outcome.
Courting Death and the Right to Fetal Life
In other highlights, back in January, I also mentioned the so-called “eugenic abortion” case of the Polish Constitutional Court and the backlash it received from critics, foreign and domestic. In Hungary, we did not have to wait that long for a similar case to arrive at the docket of the HCC as well – this time courting questions of fetal death –, and a few words should be said about how it was received:
The judicial initiative challenging a provision of the 1992 Fetus Protection Act allowing for a longer period of termination of pregnancy by reason of fetal developmental disorder was rejected (11-4). The legal twist: At the moment in the trial, where the initiative was filed to the Court, the trial court does not and did not have to apply the provision in question, therefore the Court cannot be petitioned to rule on its annulment. The initiative did not meet the legal requirements set out by the HCCA. (The decision is available here, in Hungarian.)
The underlying court case was filed for damages and grievance fees regarding a “wrongful birth” and the deficiencies of genetic and teratological diagnostics provided by the respondent hospital. Wherein the parents (plaintiff-petitioners) argued that if they had known (with at least 50% certainty) that their fetus will be born with congenital developmental disorder, they could have exercised their right to terminate the pregnancy, but this way, they did not. The trial judge, initiating the complaint, argued that the provision of the law that applies to this situation (Article 6, para. 3) is in collision with the constitutional provision of the protection of fetal life in Article II of the Fundamental Law stating that “the life of the foetus shall be protected from the moment of conception”. In the judicial rendering of facts, it was pointed out that the lack of clarity and detail in the Fetal Protection Act violates the constitutional obligation to protect fetal life.
Regardless of any merits to this argumentation, because judicial initiatives have been created exactly for the purpose of resolving interpretative conflicts that arose regarding legal provisions to be applied to the decision of a case in light of the constitution, this initiative did not pass the threshold. In the concrete case at hand, filed for damages, the legal provision requested to be examined would not have been directly applied.
Another interesting turn of this case was that the HCC “allowed the European Centre for Law and Justice” to intervene in the proceedings as amicus curiae, hoping for an outcome similar to the Polish abortion decision. (Bear in mind, the ECLJ was also amicus in the Polish case.) Having read their above-cited article, the HCC’s ruling might not have fully met their initial expectation.
Courting Death by Family Feuds
Finishing up my January post, I mentioned the ‘family feud’ unfolding between the Ukrainian Constitutional Court (UCC) and the President. Then I wrote that the case will provide fertile ground for constitutional scholars to analyze for months to come, and I was not wrong.
Despite the presidential plea for the Venice Commission to form an opinion on the status of the judges involved in decision-making on the grounds that they were seemingly in a conflict of interest when casting their vote (violating core principles of due process) and despite these judges’ continued involvement in the UCC’s operations, the Parliament introduced laws affecting the operation and membership of the Court, as a form of political attack, and the situation developed further, eventually reaching a tipping point just this week. (Bear in mind, in their urgent report on the subject, the Venice Commission called attention to a severe violation of the rule of law if political institutions obstruct those created for the constitutional review of legislation.)
Legislative channels to obstruct constitutional justice aside, the Ukrainian President (by decree) finally removed two judges from the UCC, one of them being the Chairman. This move, however anticipated, goes contrary to the rules of the removal of UCC judges set out by the Ukrainian constitution, which treats this as in in-house matter, requiring a two-thirds vote of the UCC quorum to remove a member. (I wonder where this dynamic will further develop.)
I also add a new arrival to this group of ‘family feuds’, addressed in the recently published Opinion of AG Michal Bobek in Joined Cases C-811/19 and C-840/19. In this most recent feud, dating back many-many years, two Romanian apex courts have taken their respective vendettas out of the national context, to the Court of Justice, risking unforeseeably dangerous consequences for constitutional justice in Europe as a whole, thereby endangering the extended family as well. While all arguments in the Opinion are clear-cut and well-tailored to the specific aspects of the Romanian cases waiting to be decided, it contains a few half sentences that could prove cataclysmic for national constitutional courts, if adopted by the CJEU.
These few words look for the answer to the question “whether the principle of primacy of EU law allows a national court to disapply [a decision of a] Constitutional Court”.
The carefully worded initial answer provided by AG Bobek, in the context of the case in front of him, is that “EU law authorises a national judge not to follow (an otherwise binding) legal opinion of a superior court, if he or she believes that that legal interpretation is contrary to EU law.” He then adds that “the principle of primacy must be interpreted as allowing a national court to disapply a decision of a national constitutional court, which is binding under national law, if the referring court finds it necessary in order to comply with the obligations deriving from directly effective provisions of EU law.” (quotes from paras. 139-141 of the Opinion’s provisional English text.)
Prima facie, from a (Hungarian) national judicial point of view (now presented by an academic), there are a few fundamental flaws in this argumentation (taken out of the context of the case in which it was formed) based on the basic adjudicative standards imposed on Hungarian judges. First off, national judges are subordinated only to law (in conformity with the constitution[1]) and to their internal convictions. Furthermore, they shall not be instructed in relation to their judicial activities. Adding to this, the Constitutional Court interprets the constitution with erga omnes effect, thereby also ensuring the conformity of laws with it, to which national judges – as part of the above-mentioned “omnes” – are subordinated, too.
It seems far-fetched to suppose that in such a structure, if the internal convictions of a judge would amount to a finding that an erga omnes constitutional court decision (which should orient and inform their daily adjudication anyway as a general rule) is contrary to EU law, they would simply decide to set it aside in favor of EU law. Regardless of this tangent, the dangers that are forecasted by this or similar inferences from the Opinion are grave in terms of the sustainability of the raison d’être or even the continued necessity of national constitutional courts. (Just to make sure, one should keep an eye out for how this feud is going to be resolved in Romania.)
To cut back to the dominating theme of my chosen context, I just want to say that it seems there are more life lessons to be learned from the first quarter of this year as death continues to surround us in the current third wave of the pandemic. To some extent, it might be an imprint of large-scale social anxiety that death in various shapes and sizes seems to be an omnipresent theme in European constitutional justice or the discourse surrounding it. While I appreciate the symbolism, we should try and think about how to ensure its survival, if not renaissance, too.
After all, Easter-time is about Resurrection. And while the Day of the Dead is far ahead, I remain hopeful that things will not soon turn fatal for national-level constitutional justice in Europe. While there are certainly some constitutional courts that are “courting death” by their actions, some others are merely said to do so, or – even worse – are depicted as “harbingers of death”. Neither is a good position to be in, but here is to hoping that this general perspective will not only change from beyond the grave.
[1] Because if they find that it is not, they should initiate the proceedings of the HCC in the form of judicial initiatives, like the one we discussed above, to enable rooting out inconsistencies regarding the specific issues at hand.
Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu
Over the last decades, the interest of practitioners and academics alike has substantially increased in regional integration. Unions for regional integration are faced with quite a lot of choices, for example, which form of integration they should select, whether or not they should enter various relationships, and so on. This post is intended to serve as an analytical review of how the Eurasian Economic Union (EAEU) has challenges, differences, barriers in dealing with the European Union since they are in the same geopolitical area. The purpose of this article is to provide a brief analysis and show different policy options for further pathways of cooperation between the two Unions.
1. The Eurasian Economic Union:What is it, and what it wants?
The Eurasian Economic Union (EAEU) is an existing regional integration in Eurasia that officially appeared by the establishment of a customs union in 2010. Later, the Treaty on the Eurasian Economic Union (EAEU Treaty) establishing the current form of cooperation, entered into force on 1 January 2015 between Russia, Belarus, Kazakhstan, Kyrgyzstan, and Armenia. Similarly to the European Union, the EAEU is a big market that provides ‘free movement of goods, services, capital, and labor’ and pursues coordinated, harmonized and single policy in the sectors determined by the Treaty and international agreements within the Union’.
The EAEU is the ‘youngest’ Union (from 2015) in the Eurasian space with a population of approx. 180 million people, a GDP of more than 5 trillion dollars in 2019 (according to the World Bank data of 2019). Furthermore, according to the 1 article of the EAEU Treaty, the EAEU is an international organization of regional economic integration and has international legal personality. Moreover, according to the 4 article of the EAEU Treaty the main objectives are:
1. Create proper conditions for sustainable economic development of the member States in order to improve the living standards of their population;
2. Seek the creation of a common market for goods, services, capital and labour within the Union;
3. Ensure comprehensive modernization, cooperation and competitiveness of national economies within the global economy.
The EAEU institutions have supranational and intergovernmental levels similarly to the EU, such as:
– The Eurasian Economic Commission (EEC) is a supranational executive of the EAEU analogous to the European Commission. The EEC’s main executive body is the Board with around 140 competencies.
– The Council of the Commission resembles the Council of the EU, but it is not a separate institution like in the EU.
– The Court of the Eurasian Economic Union is analogous to the European Court of Justice. It is a judicial body to resolve disputes related to the implementation of international treaties and enforcement of the decisions of its the EAEU’s bodies.
– The Eurasian Development Bank is a financial institution founded in 2006 to promote economic growth, trade, economic ties, and investment, but it is not an independent agency as in the EU, European Central Bank (ECB).
– About the EAEU’s Parliament. Mostly, President of Russia in 2013 expressed his opinion to establish Eurasian parliament like the European Parliament. But this issue is still under discussion and requires the careful willingness and political will of all members.
The most dominant member state of the EAEU is definitely Russia, in all dimensions (population, territory, economic power, etc.). In my opinion, Russia intends to use the EAEU for its political, security, and strategic interests to be a leader in the “Eurasian space At the same time, Russia promises concessions and benefits to potential members for joining the EAEU, even to make it easier with the existing legal and economic rules and procedures provided by the Treaty. In this regard, for example, in 2012, US Secretary of State, Hillary Clinton had a dissenting opinion and she described Eurasia as “a move to re-Sovietize the region.”
2. The EAEU’s regional challenges
After the establishment of the EAEU, its role, function and reputation arose as a question not only for practitioners, but also for academics. Moreover, the different social and economic developments in the member states are creating severe obstacles when it comes to the implementation of the EAEU’s goals. For now, it has urgent challenges such as a lack of power balance mostly in politics and economics among its Member States. Moreover, the Russian influence is tangible in all areas for example in decision-making. Member states are concerned that Russia may receive more benefits. Also, no member state is ready to accept the Ruble as a common currency and the EAEU will improve the competitive advantages of the country by raising requirements for the quality of products, expanding the overall market. Moreover, some trade conflict is implied among the EAEU member states, particularly among the original three, such as Belarus, Kazakhstan, and Russia. Beside this, the EAEU also faces problems with the Customs Union’s two new member states such as Kyrgyzstan and Armenia. Firstly, Kyrgyzstan has trouble with getting its products past veterinary and other controls on the country’s border with Kazakhstan in EAEU. Secondly, meanwhile, trade with Armenia is complicated by its refusal to introduce customs checks on its border with the disputed territory of Nagorno-Karabakh, which is under Yerevan’s de facto control but legally part of Azerbaijan and therefore outside the Customs Union. This conflict will probably get worse and escalate in the future with the deteriorating economic situations.Armenia and Kyrgyzstan are economically weak and not in positions to oppose Russia rather than focus on political, security, and strategic interests and obtain oil and gas from Russia at subsidized prices. In addition, Russia imposes internal trade barriers and restrictions for existing member states to export goods and curtails the free movement of labour, capital, and investments, particularly from Central Asian member states. All these issues of incongruence would be most prevalent as the Member States move towards a stronger integration and a deeper political union.
Besides the internal imbalance situation, there are external crises that impact the EAEU from the outside. In fact, the on-going Ukraine crisis, as well as the general volatility of the global economy, has already revealed tensions between EAEU Member States as well as an inability or unwillingness to coordinate policy. Also some of Post-Soviet countries such as Georgia, Moldova, and Ukraine have signed association agreements with the EU despite the desire of the EAEU to expand its integration ambitions to these countries, too.
After reviewing academic papers and as a citizen of Kyrgyzstan and as a lawyer who also studied European law, in my opinion, it seems that in Europe, Union’s structures are characterized by an in-depth integration process, while in the post-Soviet region, there are many overlapping agreements with more limited aims and resource. Due to the peculiarity of the Asian regional arrangements is their diversity, informal structure, and more flexible membership. In conclusion to emphasize that the EAEU’s need is as deep, inclusion integrative processes led by the dynamic economies of the world whether in Asia or in Europe.
3. The circumstances that determine the EAEU’s relationship with the EU
The relationship of the EAEU and the EU is determined by several actors. Firstly, there are different approaches to the situations inside the Eurasian region, such as Abkhazia, South Ossetia, Ukraine, and outside the region like Syria[1]. This mutual deterrence and challenges require special attention to arrange strategic communications with the EU. Secondly, the fragmented political dialogue may multiplicate mutual risks and threats, military and political ones inter alia, and thus strengthen confrontational trends[2]. In my point of view, the future of the EAEU mostly depends on the Russian leadership and how Russia can revitalize the Union with radical changes of its policies, perceptions, and visions towards Ukraine on the West. It needs more positive approaches to resolving the Ukraine’s conflict with the implementation of the Minsk Agreement. (‘Minsk-2’).
From the EAEU’s viewpoint, the potential opportunities and cooperation between the two Unions are not merely interested in a free-trade agreement but also in an in-depth and comprehensive agreement with the EU, and in creating the concept of a ‘Greater Europe’. In 2002, the European Commission President Romano Prodi suggested that the EU and Russia should create a Common European Economic Space. President of Russia Vladimir Putin referred to the idea of ‘Greater Europe’ in his speech at the EU-Russia summit in 2005 by creating a free trade area from Lisbon to Vladivostok, the concept of ‘Greater Europe’. Later in October 2015, the Eurasian Economic Commission submitted a proposal to the European Commission to establish official contacts and start a dialogue on a common economic space. However, the Ukrainian crisis caused a political conflict between Russia and the European Union. Clearly, a community or partnership for development, cooperation and security in Greater Eurasia is a joint project of all states wishing to participate in it. Its contours will be adjusted by real life and the search for ways to deal with old and new challenges and could discuss such issues as: simplification of customs and visa procedures, removal of non-tariff barriers, gradual opening of financial markets, convergence of technical regulations and other standards, development of infrastructure projects. This proves an ambitious attitude towards economic cooperation among the two Unions, even if the free trade area is not existing yet.
The idea of ‘Greater Europe’ is losing its relevance due to the realization of the ‘Belt and Road’ Initiative (BRI) proposed by China’s President XI Jinping in 2013. The concept of the ‘Belt and Road’ Initiative consists of two major logistic and economic projects: the Silk Road Economic Belt and the Maritime Silk Road of the 21st century which are based on the transport and logistics network, including railways and highways, air and sea routes, oil and gas pipelines, and communication lines. This project may seriously change the geopolitical situation in Eurasia and two Unions might also combine their strategic capabilities with China in a new, broader geopolitical framework, within the ‘from Lisbon to Shanghai’, concept ‘Greater Eurasia’. In the geo-economic sense, all the three parties concerned need a common economic space from Lisbon to Shanghai, concept ‘Greater Eurasia’, primarily as the alliance of the European capital and technology with the Eurasian resources and China’s cheap human capital and goods. But for now the initiative of China was perceived by the Eurasian Economic Union and the European Union differently. However, in the relations of the European Union and China, there are also issues, challenges that should be resolved such as lack of an investment agreement between the EU and China, non-recognition of China’s market economy status in the WTO, human rights issues in the China-Europe relations, etc. For now the initiative of China was perceived by the Eurasian Economic Union and the European Union differently.
In conclusion, I emphasize that initially, cooperation between the EU and post-Soviet countries was built based on bilateral partnership and cooperation agreements (PCAs) negotiated during the 1990s. Now ideally, the EU and the EAEU could harmonise their multi-faced interests in the region to strengthen their relations with the regional powers. Due to their different historical backgrounds and political, economic positions, the EAEU and the EU still have different thinking and integration approaches. However, the positive prospects rest on shaping a strategic vision for the Common Eurasian Space, where practical cooperation should be enhanced.
4. Concluding remarks
Mostly, the EAEU member states want to focus more on economic, trade-related, and investment-centered issues, without any political or ideological pressures. There are many gaps in common legislation, differences in national circumstances that create numerous barriers in commercial relations. By several exemptions and restrictions to free trade, the Eurasian integration has a common name but has not got a common mechanism yet. Moreover, in my opinion, Russia sees the EAEU as a mechanism for reinforcing its influence in the region. Also, the Ukrainian crisis had significant implications for Eurasian regionalism and became a reason for EU concern. The EAEU put forward the concept of ‘integration of integrations’ through the concept of ‘Greater Eurasia’ being replaced with ‘Greater Europe’ (consisting of the EU, the EAEU, and China).
Finally, my conclusion is that, on the one hand, the EAEU faces internal as well as external crises nowadays. On the other hand, it is commendable that the EAEU reached our freedoms: goods, services, persons, and capital as a market regulator. However, despite these successes, the relations between its member states have been aggravated to an extent with assessments on Eurasian integration and reflections on further prospects for its development and how to cooperate with the EU in a mutually beneficial and friendly way. The integration of the two Unions has a broad range of aims and addresses various challenges, positive approaches.
[1] POTEMKINA Olga (2018), European Union – Eurasian Economic Union: Potential for cooperation, The EU and Russia: the way out or the way down? / Institute of Europe, Russian Academy of Sciences; Egmont – The Royal Institute for International Relations. [2] DANILOV Dmitry (2018), The EU and Russia: Making up for security cooperation shortfall, The EU and Russia: the way out or the way down?/ Institute of Europe, Russian Academy of Sciences; Egmont – The Royal Institute for International Relations. Ed. by Olga Potemkina
Aida BEKTASHEVA is a first-year doctoral student at the Department of European and Private International Law, Faculty of Law, University of Miskolc. She fulfilled her legal studies in Kyrgyzstan at University of Osh state law institute, then she graduated from European and International Business Law, LLM at University of Miskolc.
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