The legal framework of the EAEU: some suggestions on classification

Berg Lyudmila Nikolaevna Doctor of Law 620137, Russia, Sverdlovskaya oblast', g. Ekaterinburg, ul. Komsomol'skaya, 21, of. 205 anastasiya.semenovikh@gmail.com

The Eurasian Economic Union is a "supranational" organization ^{[9, p. 134]}, whose member countries have joined forces "to solve common tasks for sustainable economic development, comprehensive modernization and strengthening the competitiveness of national economies within the global economy"^[1].

More than six years of experience in the functioning of the Eurasian Economic Union allows us to take a retrospective look at the way we have done, to assess the evolution of Eurasian integration based on the analysis of legislative and law enforcement acts of the union.

The Eurasian Economic Union is a fairly young economic integration operating in the post-Soviet space, which ensures an increased interest of researchers in studying the mechanism, principles, as well as problems of its functioning. The present study is of a general theoretical nature, and based on the application of a set of certain methods, which provides an opportunity to understand the internal structure of legal phenomena, it allows you to analyze and study the concepts of "legal framework of the EAEU", "law of the EAEU", their composition and make suggestions on their classification. These provisions ensure the relevance of scientific research.

Having analyzed scientific research in the field of jurisprudence concerning the legal issues of the EAEU, the following categories of problems can be identified that are addressed in them.

First, a review of the judicial practice of the EAEU Court. In this category, there are studies that consider the practice of the EAEU court as the engine of the evolution of Eurasian integration ^{[9, p. 135]}. Similarly, studies in which the decisions of the EAEU court are criticized indicate their inconsistency, lack of clear conclusions, and predisposition of the Court to certain parties to the dispute^{[10, p. 195]}.

Secondly, comparative legal studies, for example, comparative legal analysis of the institutions of the EAEU and the EU ^{[7, p. 156]}, other economic integrations, the comparative aspect of the law of the EAEU and the national legislation of the member states of the Union.

Thirdly, certain issues of the application of sectoral legislation within the framework of the EAEU, for example, tax and financial legislation [8 p. 111, 15], legislation regulating relations in the field of copyright ^[11], etc.

Thus, almost all research in the field of jurisprudence on the Eurasian economic integration mainly concerns sectoral and comparative legal issues, or reviews of the law enforcement practice of the EAEU bodies. There are very few conceptual theoretical studies, which once again underlines the relevance of this work.

Turning to the analysis of the provisions of the EAEU Treaty of 05/29/2014 and the legal positions of the EAEU Court, we note that the subject of this study is the concept and composition of the contractual legal framework, the law of the Eurasian Economic Union in the context of the provisions of the EAEU Treaty of 05/29/2014 and the legal positions of the EAEU Court.

In accordance with the Treaty, the "law of the EAEU" means: the Treaty; international treaties within the Union; international treaties of the Union with a third party; decisions and orders of the Supreme Eurasian Economic Council, the Eurasian Intergovernmental Council and the Eurasian Economic Commission adopted within their powers provided for by the Treaty and international treaties within the Union.

The term "contractual legal framework" occurs only three times in the text of the Agreement – in all cases we are talking about the contractual legal framework of the Customs Union (hereinafter referred to as the CU) and the Single Economic Space (hereinafter referred to as the CES). As for the direct mention of the term "legal framework of the EAEU", this concept does not occur in the text of the Treaty.

The first mention of the concept of "contractual legal framework" is found in the Contract in paragraph 1 of article 99. This norm establishes the following provision: international treaties concluded during the formation of the legal framework of the CU and the CES are the "law of the EAEU".

In the second case, the term is used in paragraph 1 of Article 101 and establishes the provision on the application of the contractual legal framework of the CU and the CES in the customs regulation of legal relations between the parties before the entry into force of the Customs Code of the Eurasian Economic Union.

The third mention of the term "contractual legal framework" contains provisions on the termination of international treaties from the date of entry into force of the Treaty: "Protocol on the procedure for the Entry into Force of International treaties aimed at forming the contractual legal framework of the Customs Union, withdrawal from them and accession to them dated October 6, 2007"^[3].

Thus, the normative legal acts regulating legal relations in the field of regional economic integration are designated by the term "law", and not "contractual legal framework".

Questions about what the law of the EAEU is and what normative acts can be attributed to it often arose when applying and interpreting the norms of the Treaty, in connection with which the EAEU Court has repeatedly attempted to clarify the content of Article 6 of the Treaty and to give an understanding of such an ambiguous, but certainly important legal phenomenon as the "law of the EAEU".

So, in an advisory opinion dated 07/10/2018, the EAEU Court considered the following request: whether the decisions of the Customs Union Commission are included in the concept of "Union law". Within the framework of this conclusion, the EAEU Court addressed the concept of "EAEU law" and proposed the following legal prerequisites for its interpretation:

"The Treaty on the Union is a codification of international treaties that make up the regulatory framework of the Customs Union and the Common Economic Space"^[5]. According to the Agreement, the member states of the Eurasian economic integration transfer to the supranational level part of the competence to regulate economic activity in certain areas, limits and volumes. This provision acts in the interests of the integration community and is aimed at establishing uniform rules for all subjects of the Eurasian economic integration.

The text of the agreement defines a general reference to normative acts, in accordance with which the legal regulation of relations between subjects of legal relations is carried out - "international treaties constituting the law of the Union". But in addition to this wording, according to the text of the treaty, as well as in some legal acts of the Union (the regulation on the EAC, the accession agreements of the EAEU member states, etc.), the wording "are included in the law of the Union" is used. In paragraph 2 of Article 99 of the Treaty, the phrase "retain their legal force" is used in relation to the decisions of the EEC.

Thus, based on the position of the EAEU Court, it can be concluded that the phrases "constitute law", "enter into law" and "retain their legal force" indicate that the relevant agreement or act is included in the law of the Union.

Such conclusions of the Court are controversial, since, using these phrases as synonyms and putting an identity between them, it does not reveal the meaning of each individual concept.

The legal position of the court is justified by two reservations:

1) The law of the Union includes international treaties of the member States, which are included in the regulatory framework of the Customs Union and the Single Economic Space.

2) The decisions of the Supreme Eurasian Economic Council at the level of heads of state, the Supreme Eurasian Economic Council at the level of heads of Government and the Eurasian Economic Commission in force on the date of entry into force of this Treaty shall retain their legal force and shall be applied in a part that does not contradict this Treaty.

International treaties concluded within the framework of the CU and the CES by virtue of the direct indication of the Treaty (paragraph 1 of Article 99) are considered as international treaties within the Union. This conclusion is based on a systematic interpretation of the norms of the Treaty.

The decisions of the EurAsEC bodies have absolutely nothing to do with the law of the EAEU. Paragraph 2 of article 99 of the Treaty refers only to the preservation of their legal force: according to the meaning of this rule, unlike international treaties concluded within the framework of the CU and the CES, the decisions of the EurAsEC bodies are not included in the law of the EAEU and are not equated with acts of the law of the EAEU – they operate in parallel, along with the law of the EAEU.

However, in this case, the EAEU Court otherwise (without referring to the direct normative indication of the Treaty) justifies the relevance of the decisions (acts) of the EurAsEC bodies adopted within the framework of the CU and the CES to the law of the EAEU.

The EAEU Court has formulated an important principle of continuity of legal regulation. The Court supported this conclusion with the legal position previously formulated in the decision of 12/28/2015 in case No. CE-1-2/2-15- CC ^[4], justifying its decision by the fact that the basis of the Agreement is the results of the codification of the contractual legal framework of the CU and the CES. Thus, the acts of the CU and the CES and the decisions of the Commission adopted before the start of the Union's functioning form part of the "Law of the EAEU".

Concluding the analysis of the issue of understanding the EAEU law, its content and structure, we note that a significant part of it consists of provisions aimed at organizing scientific cooperation (and cooperation in the field of innovation) of the Union states in certain sectors (types) of activity.

Thus, the Protocol on Trade in Services, Establishment, Activities and Investments (Annex No. 16 to the EAEU Treaty) establishes a general legal regime for the services market in the research sector.

According to the provisions of this Protocol, the services market represented in individual sectors should include all the features of a single economic market, which are formulated in paragraph 38 of the Protocol. Based on this, it is beneficial for the integration member States to expand the single market of services to the maximum number of service sectors, provided by gradually reducing barriers and restrictions provided for in national legislation.

In addition, the fundamentals of scientific research in general and in certain sectors of the EAEU economy are regulated by a variety of multilateral and bilateral agreements concluded between the EAEU states. Such agreements can be concluded even before the signing of the EAEU Treaty, thus they are integrated into the already formed EAEU contractual legal framework, are applied, as a rule, in the part that does not contradict the EAEU Treaty, and complement the regulation of those issues that are not yet directly or indirectly covered by the EAEU contractual legal framework.

The Agreement "On mutual recognition and equivalence of educational documents, academic degrees and titles" should be particularly noted ^[2]. The agreement was adopted before the creation of the Eurasian Economic Union, moreover, not all participating countries joined this agreement, for example, the agreement was not ratified by Armenia. Nevertheless, it is subject to application in the part that does not contradict the Treaty on the EAEU.

On the other hand, some exceptions to the general regulation of the scientific research market in the Eurasian space may be provided for by bilateral agreements between the EAEU states.

The author offers several suggestions for understanding the term "legal framework of the EAEU", as well as the establishment of criteria for attributing international treaties concluded before the establishment of the EAEU to it:

The sources of the EAEU law can be divided into two groups: 1) the primary law of the EAEU; 2) the secondary law of the EAEU ^{[12, 15]}. A similar classification of sources is valid in the European Union.

The primary law of the EAEU can be characterized as the legal framework of the EAEU, although this term is not used in the Treaty and other international treaties of the Union (extremely rarely – in acts of the EAEU bodies, and more often – in scientific sources). The sources of secondary law include: acts of the EAEU bodies: decisions and orders of the Supreme Eurasian Economic Council, the Eurasian Intergovernmental Council, the Eurasian Economic Commission.

At the same time, there is an opinion that "some international legal acts and norms of international law remain outside the scope of article 6 of the Treaty, which, apparently, and according to a number of scientists, will play a role in the legal regulation of the integration process and take their place in the legal system of the EAEU" ^[13].

In this case, the author means that the acts adopted by the EAEU Court, namely judicial decisions and advisory opinions of the EAEU Court. The advisory opinions are only advisory in nature. As for the decisions, the binding nature of their execution is established both for the parties to the dispute and for the EAEU Commission. But in its decision, the Court is limited to the limits of the issues indicated in the statement, and has no right to go beyond them. Also, the EAEU Court does not have the authority to amend, repeal, or create new norms in the "Law of the EAEU" or the national legislation of the member States of the Union.

It is worth noting that "the concept of the EAEU law will continue to "inevitably include the norms of "soft law", which, as a rule, are adopted by the EAEU bodies and member states" ^[6].

Summing up the results of the study, we note the following provisions.

1. The concepts of "the law of the EAEU" and "The Legal framework of the EAEU" are not equivalent. The term "Legal framework of the EAEU" covers only the following types of documents that constitute the law of the EAEU (Agreement; international agreements within the Union; international agreements of the Union with a third party). While the term "EAEU law" covers the entire set of regulatory legal acts regulating legal relations in the field of regional economic integration of the Eurasian Economic Union. This provision defines the composition of the acts included in this list.

2. When making proposals on the classification of sources of law of the Eurasian Economic Union, it is necessary to focus on the experience of European economic integration (European Union) and identify the following groups of sources:

- The primary law of the EAEU, which can be considered, the legal framework of the EAEU;

- The secondary law of the EAEU, which includes the legal acts of the EAEU bodies;

- Judicial acts of the EAEU, including decisions and advisory opinions of the EAEU Court;

- The norms of "soft law" adopted by the EAEU bodies and the integration member States.