By Vasiliki Verykaki, PhD Researcher at the City Law School
The European Union’s legal and constitutional landscape is undergoing a remarkable transformation, as highlighted by Judge Damjan Kukovec in a thought-provoking lecture on 28 November at City Law School. At the heart of these changes lies the EU’s assertion of autonomy in determining its legal standards and the evolving role of its judicial and regulatory institutions. Judge Kukovec’s insights provided a thorough analysis into the evolving influence of EU agencies and the complex relationship between EU and international law, shedding light on key developments reshaping the EU’s legal framework.
He first asserted that EU law, as a sui generis system, relies on mutual trust among authorities for functionality. Jurisdiction over customs law, VAT, and passenger rights shifted from the European Court of Justice (ECJ) to the General Court (GC) to alleviate ECJ’s caseload and leverage GC’s capacity. Also, traditionally, EU agencies have included independent Boards of Appeal (BoAs) that serve as a preliminary stage before cases are escalated to the GC. This arrangement signifies a shift in the jurisdiction, as the option of an appeal against decisions of several specified BoAs at certain agencies is effectively being reduced. In the future, the GC will regularly be the ‘last resort’ in these matters. This structural evolution highlights the growing importance of EU agencies in resolving significant legal and regulatory matters, shaping a new constitutional order.
Moreover, in the landmark Kadi judgments (C-402/05 P and C-415/05 P), the ECJ emphasised the EU’s autonomy from international law, adding that protecting fundamental rights is central to the EU legal order. Accordingly, all Union measures must align with these fundamental rights. On a similar note, the Judge summarised the Case C-457/18, Slovenia v. Croatia, where the Court ruled that Slovenia’s claim, based on Croatia’s failure to recognise an arbitral award, involved an international law dispute rather than EU law. Despite some links to Croatia, the Court did not consider the issues having a Union dimension to exercise jurisdiction.
Turning to restrictive measures, Judge Kukovec discussed significant cases like T-125/22 (RT France v. Council), where the GC upheld the EU Charter of Fundamental Rights, specifically on freedom of expression. The Court clarified that the Council can impose restrictive measures affecting this freedom, provided they meet stringent conditions ensuring legitimate restriction. Similarly, in Fridman and Others (T-635/22) and Timchenko (T-644/22), the GC reinforced that EU law enables the Council to adopt regulations to uniformly implement restrictive measures across Member States, including obligations that go beyond the original scope of a decision.
In examining the relationship between EU and international law, the Front Polisario judgments underscored the necessity of adhering to the principles of self-determination. The GC ruled that the EU-Morocco Association Agreement must respect the distinct status of Western Sahara and the consent of the Sahrawi people. Non-compliance by Morocco could be deemed a breach of the Association Agreement, with serious consequences such as suspension or termination of the Agreement. Judge Kukovec also revisited the foundational Meroni judgment (C-9/56), which granted EU agencies significant discretion as experts in technical matters. However, the recent trend shifts complex problem-solving back to the GC, challenging judges to adjudicate on specialised areas like biology or physics, where their expertise may be limited. This shift complicates the coherence of the EU’s legal system. He compared this shift to developments in the US, noting that the Supreme Court is moving away from Chevron deference, which traditionally gave administrative agencies the final say in interpreting statutes.
Using Aristotelian philosophy as a metaphor, Judge Kukovec highlighted the importance of understanding the EU’s fundamental values, or the “final cause,” in crafting sound judgments. Without a clear sense of the EU’s core principles, judicial decisions risk lacking coherence, like a sculptor unable to picture the final form of a statue. Through these discussions, Judge Kukovec illuminated the evolving complexities and challenges facing the EU legal framework. He concluded that this dynamic interplay between agencies, courts, and international law demonstrates the EU’s effort to refine its legal system while adhering to its foundational principles and structure.
The author acknowledges the valuable contribution by Jose Francisco Camarena during the review process.
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