Главная > Тенденции & прогнозы > ВЗГЛЯД ИЗ БРЮССЕЛЯ > Towards a new Strategic Partnership Agreement: EU-Russia Relations at the Crossroads

Towards a new Strategic Partnership Agreement: EU-Russia Relations at the Crossroads

Introduction

The bilateral Partnership and Co-operation Agreement (PCA), concluded in 1994 between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, constitutes the legal foundation of the EU-Russia Strategic Partnership.*2 The PCA entered into force on 1 December 1997 for an initial period of ten years. Pursuant to Article 106, the agreement is automatically extended each year unless either side informs the other party of its denunciation at least six months before the expiry date. Whereas, from a legal point of view, the PCA can therefore continue to apply without formal problems, a revision of this framework agreement is recommendable. Due to internal developments in both the EU and Russia, several provisions of the agreement have become outdated. The preamble and Article 1, for instance, refer to Russia as “a country with an economy in transition”, which is no longer appropriate after the recognition of Russia's market economy status in 2002.*3 The PCA's numerous references to GATT provisions further imply that Russia's prospective WTO accession will make the trade dimension of the agreement virtually redundant. Moreover, the level of bilateral co-operation has gradually extended beyond the scope of the PCA. An important weakness in this respect is the relative lack of PCA provisions concerning co-operation in the areas of foreign and security policy or police and judicial cooperation in criminal matters. Finally, the EU's eastern enlargement and the adoption of road maps for the establishment of four Common Spaces*4 have created new challenges for EU-Russia co-operation.

Taking into account the numerous weaknesses of the PCA as the basic legal framework for the implementation of the ambitious Common Spaces agenda, the EU and Russia agreed at their May 2006 Sochi meeting to develop a new, comprehensive framework agreement. On 3 July 2006, the European Commission launched a first step in this direction with the adoption of the draft negotiating directives for “an updated and more ambitious framework for the EU-Russia relationship”.*5 Poland, however, vetoed the planned opening of the negotiations at the November 2006 Helsinki EU-Russia summit in response to Russia's ban on the import of Polish meat. At the following summit meeting, held in Samara on 18 May 2007, EU-Russia relations reached an absolute freezing point. A long list of tensions and mutual disagreements ranging from the future status of Kosovo, the issue of energy supply to the fate of Russian-speaking minorities in Estonia and Latvia implied that, in contrast to previous practice, the summit ended without a Joint Declaration. It was only on the occasion of the 26-27 June 2008 EU-Russia Summit in Kanty-Mansiysk that a new atmosphere in the bilateral relationship could be perceived. This gathering, for the first time chaired by the new Russian President, Dmitry Medvedev, and organised under the auspices of Slovenia as the first new EU Member State to held the Presidency of the EU, formally launched the negotiations for a new Strategic Partnership agreement (cf. infra).*6

Unfortunately, the new enthusiasm quickly received a major blow with the outbreak of the conflict in Georgia in August 2008 and Russia's unilateral decision to recognise the independence of Abkhazia and South Ossetia. In response, the EU decided at an extraordinary European Council meeting to postpone the negotiations on the new partnership agreement.*7 However, it soon became clear that a long-term postponement of the negotiations was not the preferable option for the EU. In an assessment of EU-Russia relations, made by the European Commission in November 2008, it was recommended that “[t] hese negotiations should continue, first because this would allow the EU to pursue its own interests with Russia, and secondly because this is the best way to engage with Russia on the basis of a unified position ”.*8 In other words, an open dialogue on issues of disagreement was perceived as a better option than a simple suspension of the negotiations. This position was later confirmed by the General Affairs and External Relations Council:

“For the Union, dialogue and negotiation are the best means of pursuing its aims, furthering its principles and values, and resolutely defending its interest with a united front, in accordance with the negotiating mandate, which was adopted unanimously. Negotiation and dialogue on bases such as these in no way legitimise the status quo in Georgia, or Russian action contrary to our values and principles”.*9

In line with this approach, negotiations on the new strategic framework agreement resumed at the end of 2008, despite opposition from the part of Lithuania.*10 This does, however, not mean that the conclusion of a new framework agreement is now a mere formality. Apart from the numerous political tensions between Russia and various EU Member States, *11 significant legal obstacles still need to be tackled. Issues such as the scope of the agreement, the institutional framework and, foremost, the legal basis and procedure for the conclusion of the agreement are all of fundamental importance to attain the objective of a strengthened EU-Russia Strategic Partnership. In order to address those questions, this paper starts with a critical analysis of the existing legal framework of EU-Russia relations (§1). In addition, it analyses to what extent a prospective new Strategic Partnership agreement could provide added value in comparison to the current situation (§2).

§ 1. The current legal framework of EU-Russia relations: a critical assessment

The PCA has be to situated in the specific geopolitical and psychological context after the dissolution of the Soviet Union. Whereas the EU quickly offered the prospect of ‘association' and, after the 1993 Copenhagen European Council, also ‘accession' to the countries of Central and Eastern Europe (CEECs), the European Commission suggested another type of agreement to Russia and the Newly Independent States of the former Soviet Union. Accordingly, the concept of ‘Partnership' has been introduced as a label that characterizes the EC's external relations with a number of states which are not considered to be potential EU members but are seen as strategically important for the latter.*12 With Russia, a joint political declaration on Partnership and Co-operation was issued during Yeltsin's visit to Brussels in December 1993*13 as a prelude to the Partnership and Co-operation Agreement (PCA) signed in Corfu on June 24, 1994.*14

In legal terms, the PCA forms a peculiar type of agreement to be situated in between association agreements and traditional trade and co-operation agreements. It is essentially based on Articles 133 and 308 EC in combination with a wide range of EC Treaty provisions.*15 The objective of ‘Partnership' does not prevent the direct effect of clear and precise obligations, which do not require the adoption of subsequent measures. *16 In the Simutenkov case, the ECJ concluded that Russian workers legally employed in an EU Member State can directly invoke the PCA's non-discrimination provision as far as their conditions of employment, remuneration or dismissal are concerned (Art. 23 PCA).*17 Significantly, the Court adopted a teleological approach based upon its interpretations given to similar non-discrimination clauses in the Europe Agreements and the EC Treaty. Accordingly, the reference to “the conditions and modalities applicable in each Member State” nor the role of the Co-operation Council, now turned into the Permanent Partnership Council,*18 to make recommendations for the implementation of Article 23 PCA limit the immediate application of this provision. This broad interpretation appears to water down the legal distinction between Partnership and Co-operation Agreements, on the one hand, and Association Agreements, on the other, for determining the direct effect of the non-discrimination principle.*19 Of course, differences remain concerning the scope of the provisions. Article 23 PCA is, for instance, restricted to the limited grounds of working conditions, remuneration and dismissal but does not extend to rules on social security or access to employment. The EU Member States remain exclusively competent to determine the conditions for entry to their national labour market. It is only when a Russian national is legally employed in accordance with the national provisions of the host Member State that Article 23 PCA can play a role.

Notwithstanding the obvious importance of the PCA for Russian workers who are legally employed in an EU Member State, the agreement mainly contains general provisions without immediate legal effect. It has, therefore, been concluded that “ besides its very nice title there is little substance in this Agreement ”.*20 The relevance of the PCA concerns, in the first place, the introduction of GATT/WTO rules. This is, for instance, important as regards the application of the most favourite nation principle (MFN) to trade in industrial goods or the freedom of transit of goods, which gained particular importance in the light of the Kaliningrad transit question. The PCA also contains a so-called ‘evolutionary clause' (Art. 3), providing for the establishment of a free trade area ‘as circumstances allow'. A first examination of those circumstances was scheduled in 1998 but came to nothing because, for the EU, negotiations on this topic can only start after Russia's accession to the WTO. Taking into account the recent declarations of Prime Minister Putin and President Medvedev, the prospect of WTO membership and, as a result, free trade with the EC, remains gloomy.*21

As an alternative to early negotiations on free trade, the EU promoted the idea of a Common European Economic Space (CEES).*22 This concept implies the progressive approximation of legislation and standards in a wide range of economic sectors. A key provision in this respect is Article 55 PCA, which explicitly proclaims that ‘Russia shall endeavour to ensure that its legislation will be gradually made compatible with that of the[European] Community'. There is, in other words, a unilateral commitment of Russia to adapt its own legislation in line with EU standards, whereas there is no reciprocal obligation for the EU to do the same with respect to Russian legislation. This asymmetric nature of the PCA is one of the main reasons why Russia suggested already in 1999 ‘the joint elaboration and conclusion of a new framework agreement on Strategic Partnership and Co-operation in the 21st century'.*23

Russia's insistence on ‘equal partnership' is reflected in the new political agenda of the four Common Spaces. The road maps avoid references to the one-sided approximation of Russia's legislation but use more neutral terms such as ‘regulatory convergence' or ‘the elaboration of common approaches'. The suggestion of a ‘balanced approach' to legal approximation in which both sides converge towards each other and agree on new rules after mutual consultations is, however, in contravention of Art. 55 PCA. Hence, the observation that the institutional and legal framework of the PCA forms the primary instrument for the implementation of the Common Spaces agenda implies that the burden of legal adaptation essentially falls on Russia.*24

Perhaps the most important feature of the PCA is the establishment of a regular political dialogue within a multilevel institutional framework including high-level EU-Russia summits, ministerial meetings, diplomatic contacts and Parliamentary co-operation. This political dialogue allowed the extension of EU-Russia co-operation beyond the substantive scope of the PCA provisions themselves.*25 Moreover, the PCA institutional structures have been instrumental for finding compromise solutions to EU enlargement related questions such as the transit of persons to Kaliningrad or the extension of the PCA to the EU's new Member States.*26 Of particular importance for solving bilateral problems in the EU-Russia Strategic Partnership is Article 102 PCA, which allows the partners ‘to discuss any matter concerning the interpretation or implementation of this agreement and other relevant aspects of the relations between the parties' within the PCA institutions. The main weakness of the PCA's institutional framework is, however, the absence of a possibility to adopt legally binding decisions within the Permanent Partnership Council (Art. 90). Accordingly, progress in EU-Russia relations is essentially based upon the conclusion of specific bilateral agreements or joint statements with a purely political value.

The limits of the PCA as an instrument for the smooth development of EU-Russia relations were clearly illustrated with the Polish meat crisis of 2007. In the opinion of Poland, Russia's ban on the import of Polish meat was not proportional to the irregularities found and, therefore, infringed Article 19 PCA, which forbids the use of veterinary and phytosanitary restrictions on trade between the parties in an arbitrary and unjustified manner.*27 Pursuant to Article 101 PCA, disputes relating to the application or interpretation of the agreement may be referred to the Permanent Partnership Council. The latter can, however, only adopt recommendations to settle the problems. In case no solution can be found, conciliators may be appointed but their recommendations are not binding upon the parties. It is striking that the formal rules of procedure for the settlement of disputes under the PCA have not been used or even contemplated in the Polish meat row. Only after a change of government in Poland and a visit of the new Polish Foreign Minister Radoslaw Sikorski to Moscow, the meat ban and other restrictions on Polish products were lifted in December 2007 and January 2008 respectively.*28

Also in the more recent Georgia crisis or with regard to the problems resulting from the gas conflicts with Ukraine, the PCA dispute settlement provisions did not play any significant role. Hence, it seems that new legal mechanisms are necessary for strengthening the EU-Russia Strategic Partnership. Generally speaking, the following main options can be distinguished: (i) the PCA can be radically replaced by a new, comprehensive framework agreement as suggested by the EU negotiators; (ii) when this option would fail to materialise as a result of continuous disagreements between the partners, the PCA could be extended with amendments (PCA+); or, (iii) the PCA can be abandoned in order to proceed on the basis of joint political declarations and sectoral agreements as is, for instance, the case in the EU's relations with the United States.

§ 2. Options for the future

2.1. A new comprehensive framework agreement on Strategic Partnership

On the occasion of the June 2008 EU-Russia Summit in Khanty-Mansiysk, the leaders of the EU and the Russian Federation issued a Joint Statement “on the launch of negotiations for a new EU-Russia Agreement”. According to this official document:

“[T]he aim is to conclude a strategic agreement that will provide a comprehensive framework for EU/Russia relations for the foreseeable future and help to develop the potential of our relationship. It should provide for a strengthened legal basis and legally binding commitments covering all main areas of the relationship, as included in the four EU/Russia common spaces and their road maps which were agreed at the Moscow Summit in May 2005”.*29

Significantly, the EU and Russia aim to establish the necessary legal instruments for the implementation of the Common Spaces road maps, which form the main political framework of the Strategic Partnership.*30 A key advantage of the Common Spaces concept is certainly the fact that, for the first time, the EU and Russia agreed upon a joint and comprehensive agenda for future cooperation including a wide variety of issues ranging from, amongst others, the deepening of trade relations and energy cooperation to internal and external security, the fight against organised crime, weapons of mass destruction, migration and asylum, culture and education.*31 The ambition to include all those issues in a bilateral framework agreement raises interesting legal questions as regards the division of competences in the EU's internal legal order and the procedural rules to be followed. It is obvious that such a comprehensive agreement cuts across the three-pillar structure of the EU, involving the European Community for first pillar issues (common commercial policy, environment, education, culture, research and development, …) and the European Union for matters of Common Foreign and Security Policy (CFSP – second pillar) and Police and Judicial Co-operation in Criminal Matters (PJCCM – third pillar). Significantly, there are no Treaty provisions on the conclusion of such ‘multi-pillar' agreements whereas the procedural rules for concluding agreements under the Community pillar, on the one hand, and the EU pillars, on the other hand, differ significantly.*32 Moreover, the recent judgment of the European Court of Justice in the so-called ECOWAS case cast doubts over the feasibility of cross-pillar agreements on the basis of the current EU Treaty provisions.*33 In this judgment the ECJ confirmed the distinction between the Union and the Community as integrated but for all separate legal orders. Depending upon its main objective, a legal act falls either within the scope of the CFSP/PJCCM or under the Community's external powers. When the act in question has a double dimension, one falling under EC competences and the other under the CFSP/PJCCM, and both dimensions are equally important and inextricably linked, Article 47 EU implies that the entire act has to be based on the Community legal basis. Only when an agreement can be split in two or three clearly identifiable actions, belonging to the respective pillars of the EU, a conclusion on the basis of separate decision might be an option.*34

The legal complexities for the conclusion of a comprehensive EU-Russia framework agreement may not be underestimated. One of the main problems is to find a balance between the roles of the various institutions in the negotiating process. It is illustrative that the competence question already gave rise to discussions between the Commission and the Council before the start of the negotiations with Russia.*35 Moreover, Article 24(5) EU provides that, for the conclusion of agreements on CFSP matters, Member States can invoke “requirements of its own constitutional procedure” during the negotiations implying that in this case, the agreement shall not be binding on the Member State in question. It seems obvious that this might create problems regarding the application of the entire agreement.*36

Even in the hypothesis of a separate agreement on second and third pillar issues, the inclusion of policy areas going beyond the EC's exclusive competences implies that also the Member States will have to be involved in the conclusion and ratification procedure of a new EC-Russia framework agreement. This traditional form of mixity entails well-known problems concerning the entry into force and legal effect of the agreement.*37 An important drawback of the mixed procedure is the internal ratification of the agreement in all Member States, which becomes a very cumbersome and lengthy process in a Union of 27 countries.*38It is noteworthy that the existing PCA is a good example of a mixed agreement concluded by both the EC and its Member States. This explains the gap of three years between the signing and entry into force of this agreement. For a new comprehensive agreement with Russia, it can be expected that the period of ratification will even be longer.

Another question concerns the internal legal basis of the new agreement. One of the options could be to transform the PCA into a ‘Strategic Association Agreement', based on Article 310 EC.*39 Apart from the symbolic importance of this ‘upgrading' of the bilateral relationship, the possibility to adopt binding decisions within the association council would certainly be a major improvement from a legal point of view. On the other hand, the asymmetric nature of association agreements, based upon approximation to EU rules and policies, might be difficult for Russia to accept politically. For this reason, the 1999 Medium-term Strategy explicitly ruled out Russia's accession to or ‘association' with the EU.*40 An alternative could be to conclude the new agreement on the legal basis of Article 181a EC Treaty (economic, financial and technical co-operation with third countries), in combination with a range of more specific legal bases on the other issues included in the agreement (e.g. environment, culture, education etc.). Significantly, the entry into force of the Lisbon Treaty could provide an interesting way out for the legal basis discussion. A new Article 8 TEU provides that:

“1. The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.

2. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation.”*41

The parallels with the traditional provision on the conclusion of association agreements (Art. 310 EC), which is retained in the Treaty on the functioning of the Union (Art. 217 TFEU), are striking.*42 It could, however, provide a solution to the Russian sensitivities with regard to the status of association (cf. supra). A final option could be to negotiate a less ambitious agreement, including only a limited number of priority areas. With regard to the Common Economic Space, a ‘comprehensive Free Trade Agreement' covering goods, services, investment and a set of common regulatory principles has been suggested.*43 Importantly, a far-reaching trade agreement with Russia cannot exclude the energy question. Particularly after Russia's refusal to ratify the multilateral Energy Charter Treaty, which inter alia includes important provisions on free transit, investment and competition, it is the ambition of the European Commission and the EU Member States to include those principles in the post-PCA agreement.*44 It is questionable whether Russia will be prepared to introduce the most sensitive ECT provisions through this backdoor. In any event, it seems that a far-reaching trade agreement might exceed the EC's exclusive competence in the area of common commercial policy*45 and does, therefore, not necessarily avoid the above mentioned challenges of mixity (cf. supra). Taking into account the general political context of EU-Russia relations, the required procedural steps, including the unanimous agreement and ratification of all EU Member States, are not easy to overcome. Hence, a continuation of the PCA seems the only reasonable option in the short term.

2.2. A continuation of the PCA model

Given the identified weaknesses and limits of the PCA (cf. supra), the further application of this agreement is no attractive option in a long-term perspective. It is noteworthy, however, that the PCA includes a specific clause for updating the agreement. Pursuant to Article 4:

“The parties undertake to examine together, by mutual consent, amendments which it may be appropriate to make to any part of the Agreement in view of changes in circumstances, and in particular in the situation arising from Russia's accession to the GATT/WTO”.

This often forgotten provision of the PCA allows adapting the agreement to the changing context of EU-Russia relations without negotiating an entirely new treaty. The modernisation of the current framework while preserving the legal continuity of the PCA avoids complex competence questions and retains the most important elements of the existing partnership such as inter alia the directly applicable rights of Russian nationals legally employed on the territory of an EU Member State or the multilevel institutional framework. On the other hand, the absence of any specific amendment procedure in the PCA implies that changes can only be made on the basis of bilateral protocols. The negotiation of such specific protocols is, however, not an evident option. With regard to the protocols extending the PCA to the new Member States, for instance, a compromise was reached only at the very final moment. Moreover, the legally binding protocols are accompanied by Joint Statements, which do not have any legally binding force but were nevertheless crucial to finding an outcome in the negotiations. With regard to the sensitive question of Kaliningrad transit, a solution was found without negotiating a formal bilateral agreement between the EC and Russia. Both partners opted for the more flexible instrument of a Joint Statement, which avoided long and difficult ratification procedures.*46 Hence, there appears to be a tendency in EU-Russia relations in favour of political package deals rather than comprehensive, legally binding agreements. The development of the Common Spaces concept in the context of the biannual EU-Russia summits further reveals an evolution towards more pragmatic co-operation.*47 The joined conclusion of bilateral agreements on visa facilitation and readmission or the package deal on Kaliningrad transit provide good examples of this pragmatic approach. Accordingly, the question arises whether a comprehensive framework agreement is necessary at all, particularly because such agreements often result in long pretentious texts without many substance.*48 The future of EU-Russia relations could, therefore, be based on concrete, sector-specific agreements and political declarations or dialogues rather than on an all-embracing Strategic Partnership Agreement.

2.3. A Network of Political Dialogues and Sectoral Agreements

The Strategic Partnership between the EU and the United States illustrates that a comprehensive framework agreement is no prerequisite for the development of bilateral relations. The Transatlantic Partnership is based on a dense network of bilateral agreements and a multilevel political dialogue established through political declarations. To a certain extent, a similar pattern has already emerged in EU-Russia relations. Besides the overarching PCA, specific bilateral agreements on trade in steel products, trade in nuclear material and nuclear cooperation, trade in textile products, veterinary certification, readmission, visa facilitation, Europol co-operation, civil protection arrangements and science and technology have been concluded. In addition, joint dialogues on various issues, covering the four common spaces, have been installed as can be derived from the following table:

Overview of specific bilateral agreements and dialogues covering the EU-Russia Strategic Partnership*49

Common Economic Space

Common Space of Freedom Security and Justice

Common Space of External Security

Common Space of Research and Education, including cultural aspects

Bilateral Agreements

Trade in steel products;

Trade in nuclear material and nuclear co-operation;

Trade in textile products;

Veterinary certification;

Cooperation in fisheries and living marine sources in Baltic Sea.

Readmission;

Visa Facilitation;

Co-operation with the European Police Office (EUROPOL).

Participation of Russia in the EU Police Mission in Bosnia and Herzegovina;

Participation of Russia in the EU Military Mission in Chad and the Central African Republic

Science and Technology

Dialogues

Regulatory dialogue on industrial products

Enterprise policy and industrial policy

Financial services

Transport

Information society

Energy

Environment

Climate change

Agriculture

Space co-operation

Public health

Human Rights

Visa policy

Justice and Home Affairs

Security and crisis management

Non-proliferation, export controls and disarmament

Research and Development

The further extension of the network of bilateral EC/EU-Russia agreements and political dialogues is a central ambition of the Common Spaces agenda.

Envisaged bilateral agreements between the EC/EU and Russia as included in the Common Spaces Road maps:

Agreement on investment related issues	Common Economic Space
Agreement on satellite navigation (Galileo/GLONASS)	Common Economic Space
Agreement on customs co-operation	Common Economic Space
Agreement on mutual legal assistance	Common Space of Freedom, Security and Justice
Agreement between Eurojust and the Russian Federation	Common Space of Freedom, Security and Justice
Agreement on judicial co-operation in criminal matters	Common Space of Freedom, Security and Justice
Agreement on information protection	Common Space of Freedom, Security and Justice
New agreement on science and technology co-operation	Common Space on Research and Education, including Cultural Aspects

Proceeding from the example of the Transatlantic Partnership, the PCA could be replaced by a political declaration on Strategic Partnership in combination with multiple bilateral agreements and sector-specific dialogues. Various policy areas could be linked together on the basis of a legally-binding ‘guillotine clause', known from EU-Swiss relations, which implies that a set of agreements enter into force together on the same day and all come to an end should one of them be terminated. A less far-reaching alternative concerns the political linkage of certain bilateral agreements, as is for instance the case with the agreements on visa facilitation and readmission concluded on the occasion of the May 2006 Sochi EU-Russia summit.

Whereas a simple termination of the PCA without replacement by a new treaty is perfectly possible from a legal point of view, it would also have a number of significant drawbacks. The most important problem concerns the introduction of cross-cutting or horizontal clauses on common values such as democracy, human rights or the rule of law. The PCA explicitly refers to “respect for democratic principles and human rights as defined in the Helsinki Final Act and the Charter of Paris for a New Europe” as “an essential element of partnership and of this agreement”.*50 The inclusion of such principles in a legally binding text is important from the perspective of legal certainty. The same applies as regards the directly applicable non-discrimination provision for legally employed workers or the dispute settlement procedure. The existence of an overarching, legally binding, framework agreement including the general principles and laying down the main principles and objectives of the Strategic Partnership has, in other words, an added value in comparison to a purely political declaration. It is, however, impossible to regulate in detail all aspects of the bilateral relationship between the EU and Russia in a single agreement. The example of the PCA illustrates that an attempt to include all areas of co-operation results in an enumeration of vague provisions without much legally binding substance. Whatever the form of the post-PCA document, and without prejudice whether it will be a contractual agreement or a political declaration, the new framework will therefore have to be complemented by a series of legally binding sectoral agreements to deal with the more specific issues under discussion.

Conclusion: the need for an updated, balanced and pragmatic approach to Strategic Partnership

EU-Russia relations are at the crossroads. Broadly speaking, two different scenarios can be considered. On the one hand, the uneasy atmosphere between Russia and certain EU Member States as well as the institutional obstacles inside the EU may lead to a long-term obstruction of EU-Russia relations. On the other hand, the ongoing negotiations may lead to an updated legal framework for the Strategic Partnership. Either way, the current period is crucial. The PCA is no longer adapted to the current context of EU-Russia relations and the initial enthusiasm after the adoption of the Common Spaces road maps is gradually fading away. There is, in other words, a need for innovative legal mechanisms to reinforce the Strategic Partnership.

The ambition of the partners to draft a new, comprehensive framework agreement including all areas of EU-Russia co-operation raises specific competence questions. Internal institutional complexities might hamper the proceeding of the negotiations and the entry into force of such an agreement. Moreover, the added value of comprehensive framework agreements is questionable given their often non-commital language and lack of legal substance. Hence, more flexible arrangements and pragmatic solutions responding to concrete needs of strengthened co-operation in new priority areas such as energy, the fight against terrorism, crisis management, mutual legal assistance, education and culture, etc., is needed. A political declaration on Strategic Partnership in combination with a range of specific bilateral agreements, potentially linked together in a legal or political ‘package arrangement', could be an interesting alternative to the rigid option of a classical framework agreement. From the perspective of legal certainty, however, a consolidation of the horizontal dimension of the EU-Russia Strategic Partnership in a relatively short, long-term and legally binding treaty is certainly the preferable option.

As is clearly indicated in the EU's recent Country Strategy paper on Russia ‘ a decade and a half on from transition, the EU's relationship with Russia cannot and should no longer be one of donor and recipient '.*51 In comparison to the PCA, the new legal framework has to reflect better the idea of an equal partnership, in the spirit of the four Common Spaces and the reinvigorated Northern Dimension (ND).*52 A crucial challenge in this respect is to find a mutually acceptable solution to the principle of legal approximation, which is a key concept for the successful implementation of the four Common Spaces road maps. Russia's dissatisfaction with the idea of a one-sided legal approximation, reflected in Article 55 PCA, implies that a more balanced approach, based upon mutual consultations in the specific dialogue channels has to be contemplated. Such a balanced approach does not imply that a new treaty has to include a formal EU-Russia Council, modelled on the NATO-Russia Council, in which Russia could meet all 27 Member States. Such a solution would not only be inefficient, it would also deny the specific legal capacity of the EC/EU to operate as an independent actor on the international level. A balanced approach does also not imply that Russia would be allowed to ‘cherry-pick' certain parts of the acquis that are found to be most beneficial while leaving aside areas that are perceived as being less interesting. It rather implies a search for pragmatic solutions on the basis of common interests. The joint conclusion of bilateral agreements on visa facilitation, a long-standing Russian desire, and readmission, an old priority for the EU, provides an interesting example of such a pragmatic approach.

The political agenda of the Common Spaces road maps offers new opportunities for pragmatic co-operation and progress. The implementation of this ambitious agenda requires an updated legal framework that is acceptable for all parties. The involvement of Russian representatives in the formulation of joint policies and the identification of priority areas is of outmost importance. One of the main weaknesses of the present institutional framework is that the Permanent Partnership Council cannot adopt legally binding decisions. Whereas EU representatives seem reluctant to accept the idea of Russia's involvement in decision-making processes, the example of the EU's relations with other countries reveals that the adoption of binding implementation measures in the framework of joint institutions could upgrade the general co-operation provisions included in traditional framework agreements.*53 In addition, the extension of the network of bilateral sectoral agreements is of crucial importance for improving the legal dimension of the EU-Russia Strategic Partnership.

Finally, a reinforcement of the bilateral relations between the EU and Russia can only succeed when it is supported by a parallel strategy for enhanced multilateral co-operation. In this respect, the picture is not very unequivocal. Russia is part of two regional EU strategies: the Northern Dimension, which basically focuses on Northwest Russia and the Baltic Sea region*54 and the Black Sea Synergy, which concentrates on regional cooperation in the Black Sea area*55. Significantly, Russia is not a formal part of the European Neighbourhood Policy (ENP) and, more importantly, the recently created Eastern Partnership (EaP). The latter strategy, a joint initiative of Poland and Sweden, was officially launched in Prague on 7 May 2009 and includes the ambition to deepen and intensify the EU's relations with Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine.*56 In a first reaction, Russian President Medvedev expressed his concern that the EaP could evolve into “a Partnership against Russia”.*57 Obviously, the EU's rhetoric that the EaP is a positive project promoting prosperity and stability in Europe, and as such it is also in the interest of Russia, is not convincing. In Russia's political mindset, the EaP is rather perceived as a threat to its traditional sphere of influence. The recent experience of coloured revolutions', which were largely based on anti-Russian sentiments, and tensions with the new political leadership in Ukraine and Georgia partly explains Russia's critical attitude. Moreover, the EU's parallel condemnation of Russia's behaviour during the Caucasus crisis and the announcement of deeper relations with the Eastern partners on the occasion of the extraordinary European Council meeting of 1 September 2008, which was exclusively devoted to the situation in Georgia, at least created the impression that this initiative was directed against Russia. Hence, Russia's scepticism about the EaP is not too difficult to understand. Only when the EU and Russia manage to overcome the traditional zero-sum thinking in terms of spheres of influence, a genuine Strategic Partnership can be established.

Peter Van Elsuwege*1
European Institute – Ghent University

*1 Postdoctoral Fellow of the Research Foundation – Flanders (FWO) at the European Law Department of Ghent University.

*2 Agreement on Partnership and Cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part, OJ 1997 L 327/3.

*3 Council Regulation (EC) No. 1972/2002 of 5 November 2002, amending Regulation (EC) No. 384/96 on the protection against dumped imports from countries not members of the European Community, OJ 2002 L 305/1.

*4 The ambition to create four Common Spaces, namely a Common Economic Space; a Common Space of Freedom Security and Justice; a Common Space of External Security and a Common Space of Research and Education, including Cultural aspects, was introduced at the May 2003 Saint-Petersburg EU-Russia Summit. The May 2005 Moscow EU-Russia Summit adopted a single package of road maps with action points for the implementation of the new agenda. For comments, see: P. Van Elsuwege, “The Four Common Spaces: New Impetus to the EU-Russia Strategic Partnership?”, in A. Dashwood and M. Maresceau (eds.), Law and Practice of EU External Relations. Salient Features of a Changing Landscape, Cambridge, Cambridge University Press, 2008, pp. 334-359.

*5 European Commission approves terms for negotiating new EU-Russia Agreement, Brussels, 3 July 2006, IP/06/910.

Joint Statement on the launch of negotiations for a new EU-Russia agreement, Khanty-Mansiysk, 27 June 2008, at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/er/101524.pdf.

*7 Presidency Conclusions Extraordinary European Council, Brussels, 1 September 2008, Bull. EU 9 (2008), I.2.11.

*8 Communication from the Commission to the Council, Review of EU-Russia Relations, COM (2008) 740 final, Brussels, 5 November 2008, p.5.

*9 Extract from the press release of the 2903th meeting of the External Relations Council, Brussels, 10 and 11 November 2008,

*10 T. Vogel, “Leaders Seek to Restart Partnership Talks”, European Voice, 7 October 2009.

No. 319, 2009, at: http://shop.ceps.eu/BookDetail.php?item_id=1900.

*12 C. Hillion, “Partnership and Co-operation Agreements between the European Union and the New Independent States of the ex-Soviet Union”, 3 European Foreign Affairs Review 3 (1998), pp.400-401.

*13 Bull. EC 1993, 12, 1.3.29.

*14 See supra note 1.

*15 The widening of the legal basis of the PCA is a direct result of the ECJ's conclusions in Opinion 1/94 on the WTO Agreement. ECJ, Opinion 1/94 Competence of the Community to conclude international agreements concerning services and the protection of international property [1994] ECR I-5267. See also: C. Flaesch-Mougin, ‘Quel partenariat pour la Federation de Russie: Union europeenne, Communautes, Etats membres', in: J. Raux and V. Korovkine, (red.), Le partenariat entre l'Union europeenne et la Federation de Russie, Rennes, Apogee, 1998, pp.64-68.

*16 The principle of direct effect concerns the invocability of EC law, in this case the PCA, before domestic courts of EU Member States. For comments on the direct effect of bilateral agreements concluded by the EC, see e.g. M. Maresceau, “Bilateral Agreements concluded by the European Community”, Collected Courses of the Hague Academy of International Law, 2004, pp. 246-297.

*17 ECJ, Case C-265/03 Simutenkov [2005] ECR I-2579. See annotation of this judgment by C. Hillion in: Common Market Law Review 3 (2008), pp. 815-833.

*18 In comparison to the old Co-operation Council, the Permanent Partnership Council (PPC) meets more frequently and in different formats, depending on the subject under discussion. The first meeting of the PPC in the Foreign Minister format took place in Luxembourg on 27 April 2004. To date, PPC meetings have also been organised in the fields of justice and home affairs, energy and transport.

*19 F. Jacobs, “Direct Effect and Interpretation of International Agreements in the Recent Case Law of the European Court of Justice”, in: M. Maresceau and A. Dashwood, (eds.), Law and Practice of EU External Relations. Salient Features of a Changing Landscape, Cambridge, Cambridge University Press, 2008, pp.32-33.

*20 M. Maresceau, “The EU Pre-Accession Strategies: A Political and Legal Analysis”, in: M. Maresceau, E. Lannon, (eds.), The EU's Enlargement and Mediterranean Strategies. A Comparative Analysis, Houndmills, Palgrave, 2001, p.21.

*21 In June 2009, Prime Minister Putin declared that Russia's application for WTO membership was to withdrawn, in favour of a joint application with Belarus and Kazakhstan. Then President Medvedev at the G8 Summit in Italy on 10 July 2009 said that Russia could join in either of two ways, jointly with Belarus and Kazakhstan or separately. In any event, doubts were raised about Russia's intention and motivation to become a WTO member state. See: M. Emerson, “Russian Games with the WTO”, CEPS Commentary, 14 July 2009.

*22 The objective to integrate Russia into ‘a common European economic and social space' was introduced in the EU's 1999 Common Strategy on Russia. The October 2001 EU-Russia summit established a High Level Group, which presented a concept paper on the CEES to the November 2003 EU-Russia summit.

*23 “Medium-Term Strategy for Development of Relations between the Russian Federation and the European Union (2000-2010)”, at: http://ec.europa.eu/comm/external_relations/russia/russian_medium_term_strategy /.

*24 C. Hillion, “Russian Federation”, in S. Blockmans and A. Lazowski (eds.), The European Union and its Neighbours. A Legal Appraisal of the EU's Policies of Stabilisation, Partnership and Integration, The Hague, Asser, 2006, p.494.

*25 Maresceau, see supra note 15, at p.430.

*26 See: P. Van Elsuwege, From Soviet Republics to EU Member States. A Legal and Political Assessment of the Baltic States' Accession to the EU, Leiden-Boston, Martinus Nijhoff Publishers, 2008, pp.399-402.

*27 Council of the EU, “Problems in exports of meat, meat products and plant products to the Russian Federation”, Brussels, 16 November 2005, 14533/05.

*28 Roth, see supra note 10, at p.11.

Joint Statement on the launch of negotiations for a new EU-Russia agreement, Khanty-Mansiysk, 27 June 2008, at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/er/101524.pdf. [emphasis added]

*30 On the concept of Common Spaces in EU-Russia relations, see: P. Van Elsuwege, supra note 3.

*31 For an summary of the scope of issues covered by the four Common Spaces agenda, see: European Commission, The European Union and Russia. Close Neighbours, Global Players, Strategic Partners, at: http://ec.europa.eu/external_relations/russia/docs/russia_brochure07_en.pdf.

*32 With regard to international agreements concluded by the European Community, Article 300 EC stipulates that the European Commission conducts the negotiations in line with the Council mandate and in consultation with special committees appointed by the Council. On a proposal of the Commission, the Council signs and concludes the agreement. Depending on the type or content of the agreement, the Council acts by qualified majority or unanimity. With regard to the conclusion of agreements on CFSP or PJCCM matters, a different procedure applies. Pursuant to Article 24 EU, the Council Presidency rather than the European Commission conducts the negotiations. The Commission only plays a subsidiary role whereas the European Parliament is not involved in the procedure at all. Finally, the European Court of Justice (ECJ) has no jurisdiction on agreements concluded under Article 24 EU whereas it is exclusively competent to rule on the validity and interpretation of external EC agreements. For agreements concluded under Article 38 EU (third pillar), the scope of the Court's juridisdiction is defined in Art. 35 EU.

*33 ECJ, Case C-91/05, Commission v. Council, ECR [2008] I-3651. For comments, see: P. Van Elsuwege, “On the Boundaries between the European Union's First Pillar and Second Pillar: A Comment on the ECOWAS judgment of the European Court of Justice”, 15 Columbia Journal of European Law 3 (2009), pp.531-548.

*34 In this respect, the practice of concluding cross-pillar agreements on the basis of two separate decisions, one based on an EC Treaty provision and the other on the TEU, provides an interesting point of reference. Whereas there are no examples of first pillar-second pillar mixed agreements, the agreement between the EU, the EC and Switzerland concerning the latter's association with the implementation, application and development of the Schengen acquis has been adopted on the basis of two legal acts, combining first and third pillar provisions. Council Decision 2004/849/EC of 25 October 2004, OJ 2004 L 368/26 and Council Decision 2004/860/EC of 25 October 2004, OJ 2004 L 368/78.

*35 A. Beatty, “Council and Commission clash over Russia talks”, European Voice, 28 September 2006.

*36 J.V. Louis, “Les accords conclus au titre des deuxieme et troisieme pilliers", in: J.V. Louis and M. Dony, Le Droit de la Communaute europeenne, Brussels, Editions de l'Universite de Bruxelles, 2005, pp.328-329.

*37 See: J. Heliskoski, Mixed Agreements as a Technique for Organising the International Relations of the European Community and its Member States, The Hague, Kluwer Law International, 2001.

*38 In order to counterbalance the long delays for the implementation of mixed agreements, it is common practice to conclude a separate interim agreement on trade and trade related matters or to apply provisionally certain provisions of the agreement through a separate exchange of letters between the EC and the third party. Of course, this technique is principally limited to those areas falling within the Community's exclusive competences. See: Maresceau, supra note 15, pp. 209-210.

*39 M. Vahl, “Whither the Common European Economic Space? Political and Institutional Aspects of Closer Economic Integration between the EU and Russia”, in T. De Wilde d'Estmael and L. Spetschinsky (eds.), La politique etrangere de la Russie et l'Europe. Enjeux d'une proximite, Brussels, Lang, 2004, p.178.

*40 See supra note 22.

*41 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, OJ (2008) C 115/1. [emphasis added]

*42 Article 310 EC (Art. 217 TFEU) states that “The Community may conclude, with one or more States or international organisations, agreements establishing an association involving reciprocal rights and obligations, common action and special procedure”.

*43 European Commission factsheet, “EU-Russia Common Economic Space”, prepared for the November 2006 EU-Russia Summit: at: http://ec.europa.eu/comm/external_relations/russia/summit_11_06/com_eco_space.pdf.

*44 Communication from the Commission to the European Council, External Energy Relations – From Principles to Action, COM (2006) 590 final, Brussels, 12 October 2006, p.3.

*45 On the competence question in matters of commercial policy, see: P. Eeckhout, External Relations of the European Union, Legal and Constitutional Foundations, Oxford, Oxford University Press, 2004, pp.9-57. In this respect, it is noteworthy that Article 207 of the Lisbon Treaty on Functioning of the European Union amends the old Article 133 EC. Moreover, the scope of the EC's common commercial policy will be clarified in two pending cases before the ECJ (C-13/07 and Opinion 1/09).

*46 On the Kaliningrad compromise, see: P. Van Elsuwege, supra note 25, at pp.340-346.

*47 P. Van Elsuwege, supra note 3.

*48 M. Emerson, F. Tassinari and M. Vahl, “A New Agreement between the EU and Russia: Why, What and When?” in M. Emerson (ed.), The Elephant and the Bear Try Again. Options for a new Agreement between the EU and Russia, Brussels, CEPS, 2006, p. 62.

See: the Agreements Database of the Council of the EU at: http://eur-lex.europa.eu/en/accords/accords.htm and the EU's Country Strategy Paper 2007-2013 on Russia, at:

*50 Article 2 PCA.

EU Country Strategy Paper 2007-2013 on the Russian Federation, p.21. (available at: http://ec.europa.eu/external_relations/russia/csp/2007-2013_en.pdf).

In the margins of the November 2006 Helsinki EU-Russia Summit, the EU Member States, Russia, Iceland and Norway, adopted a new long-term ‘ND Policy Framework Document' and a ‘Political Declaration on the ND Policy'. The ND is the multilateral framework for the implementation of the Common Spaces road maps, see: http://ec.europa.eu/external_relations/north_dim/index.htm. For comments; see: P. Van Elsuwege, “The Common Spaces in EU-Russia relations and the future of the Northern Dimension”, in: C. Archer, (ed.),

*53 A good example concerns the adoption of implementing decisions of the EC-Turkey association council, which have – under certain conditions - been granted direct effect in the internal legal order of the EU Member States. See: ECJ, Case C-192/89, Sevince, 1990 ECR I-3497. For comments, see: Maresceau, supra note 15, pp.272-280.

*54 See: C. Archer, (ed.), The Northern Dimension of the European Union. Glancing Back, Looking Forward, Kaunas, Technologija, 2007.

*55 See: Communication from the Commission to the Council and the European Parliament, “Black Sea Synergy – A New Regional Cooperation Initiative”, COM (2007) 160 final, Brussels, 11 April 2009.

*56 Joint Declaration of the Prague Eastern Partnership Summit, 7 May 2009, 8435/09, at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/er/107589.pdf.

*57 Press-conference following Russia-EU Summit, Khabarovsk, 22 May 2009, at: http://eng.kremlin.ru/text/speeches/2009/05/22/1419_type82915_216713.shtml.

№10(37), 2009