The EU and Belarus. Current and Future Contractual Relations

The EU and Belarus. Current and Future Contractual Relations Maksim Karliuk ∗ This paper is to appear in the edited volume Stefan Lorenzmeier, Roman Petrov, and Christoph Vedder, EU External Relations Law: Shared Competences and Shared Values in Agreements between the EU and its Eastern Neighbourhood, Springer, 2020. Abstract The chapter examines the contractual relations between the EU and Belarus as they stand today and the future possibilities given the rocky history of relations. The main international agreement between the parties is still a legacy agreement from the Soviet era. Nevertheless, more engagement between parties has been happening, which has already led to new frameworks being established and interest in some continuation seems to be present. The author analyses the effect of international contractual obligations in Belarus, the peculiar case of WTO law being applicable in the country without membership thereof in the organization, the way the Eurasian Economic Union constrains possible deeper engagement of the country with the EU, and the role of values. Kewords Belarus, Eurasian Economic Union, European Union, values, WTO law Introduction EU-Belarus relations have seen many changes throughout the years, which have influenced the state of the contractual framework between the parties. In the mid-1990s the EU saw a deterioration of the political situation in Belarus and tried to exercise its influence in order to bring legal and political change. The EU sought Belarus to respect its international obligations on democracy, human rights and rule of law, and to co-operate fully with the OSCE and more actively engage with the Council of Europe in the domains of their corresponding expertise. The EU applied different approaches to reach these aims, both separately and cumulatively, including conditionality, isolation and restrictive measures. These approaches coincided with an intensification of relations with the civil society. ∗ Dr. Karliuk is the Deputy Director and Leading Research Fellow at the International BRICS Competition Law and Policy Center, and Associate Professor at the Faculty of Law, National Research University Higher School of Economics. Electronic copy available at: https://ssrn.com/abstract=3599040 However, none of the approaches seemingly brought the results desired by the EU at the time. 1 Later, following a short period of intensification of contacts, the EU became dissatisfied with the way the Presidential elections were conducted in Belarus in 2010, which made doubtful the possibility of a positive change in Belarus. This led the EU to extend considerably its policy of restrictive measures towards certain Belarusian elites. 2 As a result, a number of cases were brought before the Court of Justice of the European Union against the Council of the EU questioning the legality of its decisions against Belarusian individuals and companies. 3 However, more recently, the relations started to improve, since, in the view of the EU, Belarus introduced measures that were in line with the EU’s vision. 4 In particular, it manifested itself in the release of political prisoners and in presidential elections that were free from violence in 2015, as well as, quite importantly, a rather neutral and helpful stance over the conflict in Ukraine. Belarus has been more proactive in the Eastern Partnership and the negotiations on the Mobility Partnership were concluded. Belarus has also initiated the renewal of the annual EU-Belarus Human Rights Dialogue. Eventually, the EU lifted most of its restrictive measures in 2016. 5 It has reinforced its financial support through the European Neighbourhood Instrument and has removed textile quotas for exports. It is engaging more into economic cooperation, primarily through such institutions as the European Investment Bank, whose mandate has been extended to include Belarus, and the 1 For a detailed overview see e.g. P. Van Elsuwege, ‘The European Union and the Belarus Dilemma: Between Conditionality and Constructive Engagement’, Proceedings of the Institute for European Studies, Journal of Tallinn University of Technology, N 7, 2010, pp. 7-20. 2 See ‘Belarus and the EU’, available at: https://eeas.europa.eu/delegations/belarus/15975/belarus-and-eu_en (accessed 1 May 2018). An unprecedented number of people (including governmental officials, judges, and businessmen) were added to the list of admission restrictions and freezing of funds and economic resources. In addition, an embargo on arms and related materials, ban on exports of equipment for internal repression and ban on provision of certain services were introduced. 3 See Case T-441/11: Action brought on 12 August 2011 — Peftiev v Council. O.J. C 290, 01/10/2011 P. 0017 — 0017.; Case T-438/11: Action brought on 12 August 2011 — BelTechExport v Council. O.J. C 290, 01/10/2011 P. 0015 — 0015; Case T-439/11: Action brought on 12 August 2011 — Sport-pari v Council. O.J. C 290, 01/10/2011 P. 0015 — 0016; Case T-440/11: Action brought on 12 August 2011 — BT Telecommunications v Council. O.J. C 290, 01/10/2011 P. 0016 — 0017. 4 See ‘Belarus sanctions: EU delists 170 people, 3 companies; prolongs arms embargo’, available at: < https://www.consilium.europa.eu/en/press/press-releases/2016/02/25/belarus-sanctions/> (accessed 1 May 2018). 5 For a regularly updated full list of regulations and decisions introducing restrictive measures taken by the EU, including those against Belarus, see ‘Consolidated list of sanctions’, available at: < https://eeas.europa.eu/headquarters/headquartershomepage_en/8442/Consolidated%20list%20of%20sanctions> (accessed 1 May 2018). 2 Electronic copy available at: https://ssrn.com/abstract=3599040 European Bank of Reconstruction and Development, which has extended its financing activities. Regardless these developments, the main international agreement between Belarus and the EU is still the one concluded by the Soviet Union. 6 Even though there are plans on changing the situation and concluding a new international framework agreement with the EU, 7 it is clear that Eurasian integration is of primary importance for Belarus, since it has been for many reasons an eager proponent of closer integration with Russia and of Eurasian integration in general, which has led it to become the founding member of the Eurasian Economic Union (EAEU). This country report focuses on the following issues related to the EU-Belarus contractual relations. First, it provides an overview of the legal basis of the EU-Belarus relations. Second, it delves into the effect international contractual obligations have in the domestic legal order of Belarus. This is necessary to understand how a possible EU-Belarus agreement would work in practice. Third, it looks into the interesting case of the World Trade Organization law being applicable on the territory of Belarus, without the country being a member thereof. This could be of importance for the EU even in the absence of formal contractual relations. Fourth, since Belarus is a member of the EAEU, it requires taking this into account when envisaging any kind of agreement between the EU and Belarus. This part explains some competence issues thereof. Fifth, certain issues regarding the understanding of values are reviewed. Finally, some conclusions are made on the prospects of contractual obligations between the two parties. 1 Legal framework of EU-Belarus relations The Constitution of Belarus of 1994 (as amended in 1995, 1996 and 2004) formally recognizes the values common to the EU. The Constitution describes Belarus as a democratic state based on the rule of law where individual rights, freedoms and guarantees to secure them are recognized as the supreme value and goal of the society and the state. 8 An international agreement with the EU could possibly spur and promote these values. 6 Agreement between the European Community and the European Atomic Energy Community and the Union of Soviet Socialist Republics on Trade and Commercial and Economic Cooperation, OJ, 1990, L 68/3. 7 See ‘Makei: Belarus ready for new framework agreement with EU’, available at: http://www.belta.by/politics/view/belarus-hochet-zakljuchit-s-es-novoe-soglashenie-dlja-razvitija-otnoshenij176293-2016/ (accessed 26 December 2016). 8 The Constitution of the Republic of Belarus, adopted on 15 May 1994, N 2875-XII (as amended by the republican referendums on 24 November 1996, 17 October 2004), art. 1 and 2. 3 Electronic copy available at: https://ssrn.com/abstract=3599040 However, the legal framework of the EU-Belarus relations is rather limited and starts with the Trade and Cooperation Agreement (TCA) concluded by the then European Economic Community and the Soviet Union in 1989. 9 The agreement was endorsed by Belarus after the dissolution of the USSR. The TCA was supposed to cease to exist pursuant to Article 108 of the Partnership and Cooperation Agreement (PCA) 10 upon its entry into force. The PCA was indeed signed in 1995 and even ratified by Belarus. 11 However, no ratification followed from the EU side due to a political setback in Belarus and, therefore, it is not in force to date. It should however be mentioned that Belarus does not rule out the possibility for this PCA to enter into force, and such prospect is even mentioned in the Concept of National Security of the Republic of Belarus which was adopted in 2010. 12 The TCA is not comparable to the PCA as it is a trade agreement and does not provide for other commitments beyond that, in particular those of legislative approximation. It has rather modest objectives of promoting investment and economic co-operation in general, based on the principles of equality, non-discrimination and reciprocity. 13 However, apart from this outdated TCA, there are no substantial bilateral agreements between the EU and Belarus. Only specific agreements are in force. 14 In 2011, the Council of the EU however authorised the European Commission to start negotiations on the Visa Facilitation and Readmission Agreements with Belarus, 15 which have been signed on 8 January 2020. 16 9 Agreement between the European Community and the European Atomic Energy Community and the Union of Soviet Socialist Republics on trade and commercial and economic cooperation, OJ, 1990, L 68/3. 10 Proposal for a Council and Commission Decision on the conclusion of the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Belarus, of the other part, 22 February 1995, COM(95) 44 final. 11 Enactment of the Supreme Council of the Republic of Belarus ‘On ratification of the Partnership and Cooperation Agreement between the European Communities and their Member States of the one part, and Belarus, of the other part’, adopted on 12 April 1995, N 3719-XII. 12 Edict of the President of the Republic of Belarus ‘On adoption of the concept of national security of the Republic of Belarus’, adopted on 9 November 2010, N 575, art. 19(5). 13 R. Petrov, ‘The Partnership and Co-operation Agreements with the Newly Independent States’ in: A. Ott and K. Inglis (eds.), Handbook on European Enlargement: A Commentary on the Enlargement Process, The Hague: Asser Press, 2003, p. 175. 14 Agreement between the Republic of Belarus and the Commission of the European Communities on the Establishing Privileges and Immunities of the Delegation of the Commission of the European Communities to the Republic of Belarus of 7 March 2008 (entered into force on 30 January 2009); Framework Agreement between the Commission of the European Communities and the Government of the Republic of Belarus of 18 December 2008; Agreement in the form of an Exchange of Letters between the European Community and the Republic of Belarus amending the Agreement between the European Community and the Republic of Belarus on trade in textile products, OJ, 2007, L 337/114. The last agreement is the renewed 1993 Textile Agreement setting quotas on Belarusian textiles exports. It has been renewed several times but ceased to exist in 2009. 15 Council conclusions on Belarus, 3065th Foreign Affairs Council meeting, Brussels, 31 January 2011; Note from General Secretariat of the Council to Coreper/Council 6354/11, 18 February 2011. Adoption of a Council Decision authorising the Commission to open negotiations for the conclusion of an agreement between the European Union and Belarus on the facilitation of the issuance of short-stay visas; Note from General Secretariat of the Council to Coreper/Council 6424/11, 18 February 2011. Adoption of a Council Decision 4 Electronic copy available at: https://ssrn.com/abstract=3599040 Due to the lack of substantial legal grounds of EU-Belarus relations and, mainly, since the EU has frozen the ratification of the PCA, it can be stated that, on the EU side, the EU-Belarus relations are currently mostly governed by successive conclusions of the EU Foreign Affairs Council. Regardless the lack of a bilateral contractual framework, there are binding legal acts adopted in Belarus in order to foster the development of EU-Belarus relations and to encourage the EU to give legal effect to the PCA with Belarus. For example, the Concept of National Security states that Belarus intends to stir up interaction with the EU, 17 develop full-scale relations with the EU Member States, maintain active dialogue with the EU on the issues of mutual interest with a prospect of concluding the Partnership and Co-operation Agreement as well as “abolition of discriminative measures against the Belarusian state”.18 Therefore, the Belarusian authorities seem to be interested in concluding the PCA with the EU since this aim forms part of a programme document. If the EU-Belarus PCA (or any other international agreement between the parties) enters into legal force it would constitute an inherent part of the Belarusian legal order as any other international agreement. However, this does not mean that its implementation into the legal system of Belarus would take place without legal challenges. 2 International law in Belarus The Constitution of the Republic of Belarus possesses the highest legal force on the territory of Belarus. It is believed that according to Napoleon, constitutions should be court et obscure, and, similarly, according to some of the American founding fathers—‘short and dark’. 19 The Belarus’ Constitution is almost twice as long as the American one and it is, arguably, not as ‘dark’ either. 20 However, there is an exception. A ‘dark’ spot of the Belarus’ Constitution, which interests us the most for the purposes of this country report, concerns the relation of international law and national law. authorising the Commission to open negotiations for the conclusion of a readmission agreement between the European Union and Belarus. 16 See ‘Visa Facilitation and Readmission: the European Union and Belarus sign agreements’, available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_20_6 (accessed 26 April 2020). 17 Edict of the President of the Republic of Belarus ‘On adoption of the concept of national security of the Republic of Belarus’, adopted on 9 November 2010, N 575, art. 19(5). 18 Ibid, art. 49(5)(14). 19 G. Frankenberg, "Comparing Constitutions: Ideas, Ideals, and Ideology-toward a Layered Narrative," IconInternational Journal of Constitutional Law 4, no. 3 (2006): fn. 2. 20 Thus, there are no such debatable provisions as “proper and necessary” clause. 5 Electronic copy available at: https://ssrn.com/abstract=3599040 The Constitution of Belarus is not clear on the effect of international agreements: “The Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith”. 21 Therefore, the Constitution does not provide for the priority of international agreements and only stipulates that the state shall recognize the supremacy of the universally acknowledged principles of international law and ensure that its laws comply with such principles. It means that the Constitution recognises the supremacy of the generally recognised principles of international law rather than international agreements and the international law as such within the legal system of Belarus. Some of these principles are listed: ‘In its foreign policy the Republic of Belarus shall proceed from the principles of equality of states, non-use of force or threat of force, inviolability of frontiers, peaceful settlement of disputes, non-interference in internal affairs and other generally recognised principles and norms of international law.’ 22 Former head of the Constitutional Court believes that the universally acknowledged principles of international law are, in fact, higher than the national Constitution, and the latter must be interpreted in light of the former. 23 At least as compared to the previous, 1978 Constitution of the Byellorussian Soviet Socialistic Republic, which referred to international treaties only with regard to the competence of concluding and ratifying them, the current Constitution recognizes them as a source of law and refers to them six times in the text. 24 One of the provisions precludes conclusion of international agreements that contradict the Constitution.25 Another notion used alongside ‘international treaties’ is ‘international legal acts’. The latter are used in the Constitution in the context of ratification, 26 but can be understood as 21 Art.8(1) Constitution of Belarus. Art.18 Constitution of Belarus. 23 G.A. Vasilevich, Konstitutsionnye osnovy implementatsii mezhdunarodnykh dogovorov Respubliki Belarus’ i norm, integratsionnogo prava (Constitutional basics of implementation of international treaties of the Republic of Belarus and norms of integration law), Minsk: Pravo i ekonomika, 2015, p. 104. 24 I.I. Pliakhimovich, Kommentarii k Konstitutsii Respubliki Belarus’: Tom 1 (Commentary to the Constitution of the Republic of Belarus), Minsk: Amalfeia, p. 209. 25 Art.8(3) Constitution. 26 Art.61, Art.116(part 4) Constitution of Belarus. 22 6 Electronic copy available at: https://ssrn.com/abstract=3599040 including such acts as international agreements and acts of international organizations, as well as international individual legal acts. 27 The status of international agreements (and here we have in mind the possible international agreement with the EU) is not clearly defined in other national legislative acts either. In principle, it depends on the status of national legal acts, by which such agreements are adopted as binding. According to the Law on International Treaties, legal norms of international agreements concluded by Belarus form part of national legislation and are subject to direct applicability, apart from situations where it follows from the agreement itself that a national legal act should be adopted. In this case, international agreements essentially have the force of the ratifying act. 28 A similar provision is part of the Law on Normative Legal Acts. 29 This means that the legal force of Belarus’ international agreements is equated to that of national legal acts, by which such agreements are adopted as binding. As a general rule, in case of a collision between legal acts, the act with higher legal force is applicable. However, in case such acts are of equal legal force, the act adopted later takes precedence. Following this rule, as noted by L. Pavlova 30 and A. Zybailo, 31 the force of norms of an international agreement on the territory of Belarus can be annulled through adoption of a new law, decree or edict. Similar provisions are part of the Civil Code, Bank Code and a number of other legal acts. 32 Only the Civil Procedure Code, Criminal Code and Labour Code as well as a number of other laws give prevalence to international agreements in case of conflict with national legislation. 33 27 Pliakhimovich, op. cit., p. 248. Zakon Respubliki Belarus’ ‘O mezhdunarodnykh dogovorakh Respubliki Belarus’’ (Law on international treaties of the Republic of Belarus), adopted on 23 July 2008, No 4213, Natsionalnyi reestr pravovykh aktov Respubliki Belarus’ (4 August 2008) No 184, 2/1518, Art.33(2). 29 Zakon Respubliki Belarus’ ‘O normativnykh pravovykh aktakh Respubliki Belarus’’ (Law on normative legal acts of the Republic of Belarus), adopted on 10 January 2000, No 361-Z, Natsionalnyi reestr pravovykh aktov Respubliki Belarus’ (13 January 2000) No 2/136, Art.20. 30 L.V. Pavlova, ‘Osobennosti zakonotvorchestva Respubliki Belarus’ v oblasti zakliucheniia mezhdunarodnykh dogovorov’ (Features of the Republic of Belarus’ law-making in the field of conclusion of international treaties) in E.V. Babkina et al. (eds.), Aktualnyie problemy mezhdunarodnogo publichnogo i mezhdunarodnogo chastnogo prava: sbornik nauchnykh trudov, No 1, Minsk: BSU, 2011, 2009, p. 109. 31 A.I. Zybailo, ‘Mesto istochnikov prava EvrAzES v pravovykh sistemakh gosudarstv-chlenov’ (Place of EURASEC sources of law in legal systems of member states), Evraziiskii iuridicheskii zhurnal, No 7, 2013, pp. 14-18. 32 Civil Code of the Republic of Belarus, adopted on 7 December 1998, No 2183, Art.6; Bank Code of the Republic of Belarus, adopted on 25 October 2000, No 4413, Art.3; L.V. Pavlova, ‘Rol’ mezhdunarodnogo prava kak reguliatora mezhdunarodnykh otnoshenii v usloviiakh globalizatsii’(Role of international law as regulator of international relations in the context of globalization’) in E.V. Babkina et al. (eds.), Aktualnye problemy mezhdunarodnogo publichnogo i mezhdunarodnogo chastnogo prava: sbornik nauchnykh trudov, No. 3, Minsk: BSU, 2011, pp. 76-85. 33 Code of Civil Procedure, adopted on 11 January 1999, No 2383, Art.543; Criminal Code, adopted on 9 July 1999, No 2753, Art.7 (regarding extradition); Labour Code, adopted on 26 July 1999, No 2963, Art.8 28 7 Electronic copy available at: https://ssrn.com/abstract=3599040 Therefore, according to these rules, the possible international agreement with the EU, which would have to be ratified by a national law, could in principle become lower in status than a future new act of national legislation. Hence, there is nothing to prevent the rule lex posterior derogat legi priori. However, Vasilevich believes that this principle does not apply, but the principle lex specialis derogat legi generali applies instead. 34 In this case international agreements enjoy priority over any kind of laws, while still remaining lower than the Constitution, essentially claiming that the legislative provisions mentioned above are unconstitutional. 35 At any rate, it is plausible that international law-friendly interpretation would give prevalence to such an international agreement over national legislation. In terms of direct applicability of international agreements, although the Constitution does not provide for a relevant formulation, article 116 can be interpreted in such a manner, since the Constitutional Court can recognize laws, decrees and edicts of the President unconstitutional, if they do not conform to ratified international legal acts. 36 In any event, the overview above shows regulatory deficiencies regarding the status of international agreements in the national law of Belarus. 3 The issues of the World Trade Organization law The EU supports Belarus in its bid to become member of the World Trade Organization (WTO) and helps in it by providing technigcal assitance through the TAIEX twinning instrument. 37 However, interestingly enough, WTO law is already applicable in Belarus, although Belarus is not a member yet. This situation occurs in virtue of Belarus’ membership in the EAEU. Annex 31 to the EAEU Treaty provides for the Protocol on the Functioning of the EAEU within the Multilateral Trading System. 38 It refers to the Treaty on the Functioning of the Customs (regarding agreements that are ratified and entered into force); Criminal Enforcement Code, adopted on 11 January 2000, No 3653, Art.3 (prioritises self-executive norms of international agreements). See also the Investment Code, adopted on 22June 2001, No 373, Art.6(3); Marriage and Family Code, adopted on 9 July 1999, No 2783, Art.237; Tax Code, adopted on 19 December 2002, No 1663, Art.5; Air Code, adopted on 16 May 2006, No 1173, Art.4; and others. 34 Vasilevich, Konstitutsionnye osnovy, op. cit., p. 124. 35 See also G.A. Vasilevich, Kostitutsionnoe parvo (Constitutional law), Minsk : Registr, 2012, p. 37 ; Pliakhimovich, op. cit., p. 244. 36 Art.116(5) 37 See ‘Belarus and the EU’, available at: https://eeas.europa.eu/delegations/belarus/15975/belarus-and-eu_en (accessed 1 May 2018). 38 Annex 31 to the Treaty on the Eurasian Economic Union. Protocol on the Functioning of the Eurasian Economic Union within the Multilateral Trading System. 8 Electronic copy available at: https://ssrn.com/abstract=3599040 Union within the Multilateral Trading System concluded on 19 May 2011 39 essentially extending its validity and introducing it into the EAEU legal framework. The Treaty on the Functioning of the Customs Union within the Multilateral Trading System (hereinafter ‘Multilateral Trading System Agreement’) was adopted to accommodate accession of the Customs Union member states into the WTO and, primarily, Russia, who was to accede first. Eventually Russia acceded in 2012 40 and its obligations became part of the EAEU law in virtue Article 1(1) of the Multilateral Trading System Agreement: ‘From the date of accession of any of the Parties to the WTO, the provisions of the WTO Agreement as set out in its Protocol of Accession, including the commitments undertaken by this Party as part of the terms of its accession to the WTO, which relate to matters that the Parties have authorized Customs Union Bodies to regulate in the framework of the Customs Union, as well as the legal relationships, regulated by the international treaties, constituting the legal framework of the Customs Union, shall become a part of the legal framework of the Customs Union.’ 41 Thus, the WTO Agreement is part of the law of the Union in part, which is covered by the exclusive competence of the EAEU, on the conditions of the first member state acceding to the WTO, meaning Russia. Further, upon accession of other member states to the WTO, their obligations also become part of Union law. This means that even Belarus, not being part of the WTO is bound by WTO legal norms. Although, there are caveats. Thus, member states who are not part of the WTO are allowed to deviate from WTO law, to the extent that (1) EAEU law is required to be adjusted and/or (2) national legal order autonomously regulates the matter in hand. To take advantage of this exception, Belarus would have to notify the Eurasian Economic Commission of the nature and extent of such deviations. Such exceptions cease to exist upon accession of Belarus to the WTO, unless it is expressly provided for by the terms of accession to the WTO. 42 39 Treaty on the Functioning of the Customs Union in the framework of the Multilateral Trading System of Mya 19, 2011. 40 See ‘Russian Federation and the WTO’, available at: https://www.wto.org/english/thewto_e/countries_e/russia_e.htm (accessed 1 May 2018). 41 Art. 1(1) Treaty on the Functioning of the Customs Union in the framework of the Multilateral Trading System. 42 Art. 1(6) Treaty on the Functioning of the Customs Union in the framework of the Multilateral Trading System. 9 Electronic copy available at: https://ssrn.com/abstract=3599040 Further, WTO law has priority over EAEU law until the latter is amended to comply with the former. 43 The rights and obligations of the Member States stemming from WTO law cannot be abrogated or limited by Eurasian Economic Commission decisions, and international agreements within the EAEU or by the EAEU Court. 44 Therefore, it is a rather interesting development in the binding legal framework which could be used beneficially by both the EU and Belarus in their trade relations. 4 Legal aspects of Belarus-EU relations in light of participation in the EAEU Delving deeper into Belarus’ participation in the EAEU, it must be noted that EAEU is a ‘an international organisation of regional economic integration and shall have international legal personality’. 45 The latter means that the EAEU can conclude international agreements. This does not preclude Belarus from concluding international agreements as long as they do not conflict with the aims and principles of the EAEU Treaty: “This Treaty shall not preclude the conclusion by the Member States of international treaties that are not inconsistent with the objectives and principles of this Treaty.” 46 EU is Belarus’ second main trade partner, and the bilateral trade in goods has been growing. So far the Dialogue on Trade has been established, which serves the purpose of exchanging on regulatory issues and trade concerns. 47 Conclusion any international agreement between the EU and Belarus would require taking into consideration the competence of the EAEU. This is especially true of any agreements that would include trade in goods, since customs union policy is exclusive competence of the EAEU. Indeed, the EAEU Treaty identifies three types of policies: common policy, coordinated policy and agreed policy. A common policy is “the policy implemented by the Member States in certain spheres as specified in this Treaty and envisaging the application of unified legal regulations by 43 Art. 2(1) Treaty on the Functioning of the Customs Union in the framework of the Multilateral Trading System. 44 Art. 2(2) Treaty on the Functioning of the Customs Union in the framework of the Multilateral Trading System. 45 Art.1(2) Treaty on the Eurasian Economic Union. 46 Art.114(1) Treaty on the Eurasian Economic Union. 47 See ‘Belarus and the EU’, available at: https://eeas.europa.eu/delegations/belarus/15975/belarus-and-eu_en (accessed 1 May 2018). 10 Electronic copy available at: https://ssrn.com/abstract=3599040 the Member States, including on the basis of decisions issued by Bodies of the Union within their powers.” 48 In its advisory opinion the EAEU Court has clarified that in order to ascribe certain sphere to a common policy, two conditions must be met: first, a unified legal framework must be present; second, member states must have conferred competences in this sphere to the bodies of the Union within their supranational powers. 49 Thus, the notion of common policy corresponds broadly to that of exclusive competence in the EU. 50 The EAEU Court has identified a number of policy areas that correspond to these criteria, and one of them is indeed the customs union policy as it requires unified legal regime and transfer of competence from the member states to the EAEU. 51 Thus, EAEU’s involvement would be needed in a number of fields, which is complicated since there are no official relations between the EAEU and EU. 52 This would not be easy for legal reasons as well, since the EAEU possesses its own complex legal system, a totality of legal rules collected under the notion of the ‘law of the Union’. 53 The EAEU has developed its own rules for conclusion of international agreements, and has been active in pursuing external trade and economic cooperation and launched a process for a network of free trade agreements of its own. The first such agreement has been concluded with Vietnam in 2015.54 A few others have been concluded since, and the work is underway to negotiate further agreements. 55 48 Art.2 Treaty on the Eurasian Economic Union. Advisory Opinion N SE-2-1/1-17-BK, 4 April 2017. This view has been confirmed in the future cases, e.g. Advisory Opinion N SE-2-2/2-17-BK, 30 October 2017. 50 Art.2 Treaty on the Functioning of the European Union. 51 Advisory Opinion N SE-2-2/2-17-BK, 30 October 2017. 52 There have only been some talks on some sort of possibilities. See e.g. A. Sytas, "Exclusive: Eu's Juncker Dangles Trade Ties with Russia-Led Bloc to Putin," available at: <http://www.reuters.com/article/us-eujuncker-russia-idUSKCN0T821T20151119> (accessed 1 May 2018). 53 Art.6 Treaty on the Eurasian Economic Union. 54 Free Trade Agreement between the Eurasian Economic Union and its Member States, of the one part, and the Socialist Republic of Viet Nam, of the other part, 29 May 2015. 55 The EAEU has concluded preferential agreements with Iran, Serbia, and Singapore and a non-preferential agreement with China. Negotiations are under way with Egypt, India and Israel. The New Zealand and European Free Trade Association FTA projects were abandoned in 2014 in the aftermath of the fallout with the West. See “Status of negotiation tracks on free trade” available at: http://www.eurasiancommission.org/ru/act/trade/dotp/sogl_torg/Documents/%d0%9f%d1%80%d0%be%d0%b 2%d0%be%d0%b4%d0%b8%d0%bc%d1%8b%d0%b5%20%d0%bf%d0%b5%d1%80%d0%b5%d0%b3%d0 %be%d0%b2%d0%be%d1%80%d1%8b%20%d1%81%d1%81%d1%82_%d1%81%d0%b0%d0%b9%d1%82. pdf 49 11 Electronic copy available at: https://ssrn.com/abstract=3599040 5 The issue of values The EU is strongly based on values, which are embedded in its legal system. Indeed, when discussing the nature of the law established by the EU Treaties, the CJEU stresses in its case-law the importance of values. For instance, in one of its most recent cases Slovakia v Achmea, 56 the Court referred to mutual trust between the member states regarding a set of common values on which the EU is founded, and that these values will be recognised, and therefore that the law of the EU that implements them will be respected. The values are enumerated in Art. 2 TEU: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. The Constitution of Belarus provides also in Art. 2 that “the individual, her rights, freedoms and guarantees for their attainment are the supreme goal and value of society and the States.” Further, although the Constitutional Court of Belarus recognises the priority of EAEU law in particular fields, 57 it has made it clear that priority cannot result in violation of constitutional rights and freedoms. In its essence, the Constitutional Court claimed the right to review EAEU legal acts on human rights grounds. This reasoning was grounded in the supremacy of the Constitution read jointly with the provision of the EAEU Treaty preamble stating unconditional respect for the supremacy of constitutional human rights and freedoms. The history of EU-Belarus relations, as described in the introduction, has shown that understanding of certain values differs drastically. Even though the relations have been improving lately, it does not mean that the understanding has started to align. It is rather the result of a number of internal and external factors that convinced both parties to pragmatically pursue the improvement regardless the remaining differences. The EU still has concerns over the situation with human rights and democracy (freedom of assembly and association, labour standards, freedom of speech and the media), in particular Belarus being 56 Case C-284/16, Slovakia V Achmea Bv, Eu:C:2018:158 (6 March 2018). Решение Конституционного Суда Республики Беларусь от 13 октября 2016 г. № Р-1069/2016 «О соответствии Конституции Республики Беларусь Закона Республики Беларусь «Об оценке соответствия техническим требованиям и аккредитации органов по оценке соответствия» (Decision of the Constitutional Court of the Republic of Belarus on 13 October 2016, No R-1069/2016 ‘On conformity of the Law of the Republic of Belarus ‘On technical requirements conformity assessment and accreditation of conformity assessment bodies’ to the Constitution of the Republic of Belarus), available at: < http://www.kc.gov.by/document-44693> (accessed 7 September 2018). 57 12 Electronic copy available at: https://ssrn.com/abstract=3599040 the only European country to apply death penalty in practice. For these and other reasons, the EU-Belarus Coordination Group was established in 2016 as a forum for senior officials’ policy dialogue. Same year Belarus has adopted the ‘National Action Plan on Human Rights’. 58 Given the rocky history of EU-Belarus relations, it is hard to predict whether this pragmatism will spill over to the alignment of interpretation of values. What can be said is that it opens the door to the improvement of the outdated legal framework of bilateral relations. Absence thereof does not allow Belarus to take full advantage of the European Neighbourhood Policy and Eastern Partnership, which limits Belarus’ participation in various European programmes and limits dialogue. Conclusion Belarus is not well integrated into the framework of common European values, standards and legal rules comparing to other members of the Eastern Partnership and beyond. Belarus has never voiced European aspirations preferring instead deeper integration with Russia. It seemed that only in times of conflict with its Eastern neighbour, the Belarusian leadership turned to somewhat more pro-European rhetoric though without any considerable implications. Recently, some changes have occurred and the dialogue is growing. Belarus is trying to position itself as capable of being an equal partner to anyone and to balance its interests between the East and the West. This has not led to an overhaul of the contractual legal framework with the EU yet, which is still based on some outdated agreements and provisions. It seems that there is a growing interest on both sides and changes might follow. Until this happens, there are certain legal assurances for beneficial relations, which surprisingly flow from Belarus’ membership in the EAEU, in particular in the applicability of WTO law in Belarus, albeit the country is not a member thereof. Although some new contractual legal framework between Belarus and the EU is imaginable, a comprehensive agreement is hardly possible. It follows primarily from Belarus’ membership in the EAEU and transfer of certain exclusive competences to the supranational level. This means that any comprehensive agreement with the EU would need involvement of the EAEU. 58 See ‘Human Rights’, available at: <http://mfa.gov.by/en/organizations/human_rights/> (accessed 1 May 2018). 13 Electronic copy available at: https://ssrn.com/abstract=3599040