The unbearable logic of the Court: commentary on the Decision of the Court of the EAEU dated October 11, 2018 in the case “Oil Marine Group” (RF) v. Commission

The article is devoted to the analysis of the decision of the Court of the EAEU dated October 11, 2018 in the case “Oil Marine Group” (RF) v. Commission. The plaintiff appealed the Commission’s inaction, expressed in the refusal to monitor the implementation of international treaties and the Commission’s decisions regarding the granting of customs privileges. The Court supported the position of the claimant and recognized the work of the Commission as incomplete and superficial. Inter alia, it analyzed the work of the Commission, which was carried out before the complainant’s recourse to the Commission. In his dissenting opinion judge Baishev cited a number of arguments against the majority opinion: the claimant did not prove the existence of non-uniform practice; he does not have the right to make demands in defense of third parties (i.e., persons affected by the Commission’s inaction prior to the complainant’s recourse to it); the Court does not have the right to exercise control and supervisory functions in relation to the Commission, etc. The key issue in this case is the duty of the Commission to conduct monitoring at the request of a company. The author concludes that such a duty is absent. Firstly, the Commission is a “Union body” and therefore has no right to interact with entities which are not members of the Union, outside the limits established by the Treaty. Secondly, it is a “regulatory body” and, therefore, should be primarily concerned with rule-making, and not with the protection of the interests of specific companies. Thirdly, the complaint against the Commission’s refusal to conduct monitoring does not comply with the conditions of the procedure provided for in paragraph 39(2) of the Statute, since this refusal does not affect directly the rights and interests of the applicant and does not entail their violation. Fourthly, this recourse to the Court can be qualified as an evasion, aimed at overcoming the negative consequences of the lack of procedural opportunities for business entities and the Commission to appeal to the Court against actions of the Member States. Thus, the Court should have discontinued the proceedings because its consideration was not within the competence of the Court. The Court, however, supported the claimant’s demands, thus causing serious damage to its intellectual reputation and political status.

About the author: Vladislav Tolstykh – Doctor of Sciences in Law, Professor, International Law Department, Moscow State Institute of International Relations (MGIMO University); Senior Researcher, Institute of Philosophy and Law (Siberian Branch) of the Russian Academy of Sciences, Novosibirsk, Russia.

Citation: Tolstykh V. (2019) Nevynosimaya logika Suda: kommentariy k Resheniyu Suda Evraziyskogo ekonomicheskogo soyuza ot 11 oktyabrya 2018 goda po delu “Oyl Marin Grupp” (RF) protiv Komissii [The unbearable logic of the Court: commentary on the Decision of the Court of the EAEU dated October 11, 2018 in the case “Oil Marine Group” (RF) v. Commission]. Mezhdu­narodnoe pravosudie, vol.9, no.2, pp.128–135. (In Russian).

References

Ispolinov A.S. (2013) Reshenie bol'shoy kollegii Suda EvrAzES po delu yuzh­nogo Kuzbassa: naskol'ko obosnovan sudeyskiy aktivizm? [Eurasian Economic Community Court Grand Collegium decision in Yuzhny Kuzbass case: in what measure is judicial activism justified?]. Evraziyskiy yuridicheskiy zhurnal, no.5, pp.19–26. (In Russian).

Tolstykh V. (2018) Nekotorye obshchie problemy deyatel'nosti Suda Evraziyskogo ekonomicheskogo soyuza [From apology to apology: some general problems arising from the activity of the Eurasian Economic Union Court]. Mezhdunarodnoe pravosudie, vol.8, no.3, pp.66–76. (In Russian).