Tendintele Relatiilor Ruso-europene

7/29/2019 Tendintele Relatiilor Ruso-europene

1/80

6 2005

Strategic and Practical Aspectsof the Legislation Harmonization between

Russia and the European Union

Chapter I

I


2/80

RECEP

The Russian-European Centre for

Economic Policy (RECEP) was estab-

lished as a project in 1995, and contin-

ued under four two-year phase public

procurement contracts until 2002. In

2004, the fifth phase of the project was

launched.

RECEP is a project providing techni-

cal assistance to the Russian Fede-

ration government. It is financed by the

European Union. The Centre functions

as an independent think tank and pro-

vides economic and legal studies and

policy advice, with team supported by

highly qualified EU RF experts and

advisors.

The objectives of RECEP are to sup-

port socio-economic reforms in Russia

and to promote an EU RF dialogue in

such priority areas as the implementa-

tion of the Partnership and Cooperation

Agreement and the creation of the

Common European Economic Space.RECEP's activity also aims at elimi-

nating obstacles in mutual development

of trade and investments. Issues

researched by the socio-economic

reforms group, and the EU RF rela-

tions group are in the forefront of the

Centre's work.

One of the project's strategic plans is

to make the Centre a highly recognized

source of information and policy advice.

Research performed by the Centre isdemand driven, and hence conducted

on the basis of requests from presiden-

tial, governmental and parliamentary

institutions.

Igor KossikovPublications Director Key Information &

Communication Expert, RECEP

flfl

- -

1995 -

fl -

fl 2002 .

2004 fl, flfl

.

-

, -

. -

-

,

fl

.

fl

- -

, -

- -

fl, fl

fl -

. fl-

- fl -

fl .

flfl , -

-

.

fl -

fl -

-

. fl -

flfl -

, ,

.


3/80

About the author

Sergey KashkinRECEP Expert

Sergey Kashkin is the Chief of the Chair of

European Union Law at the Moscow State

Academy of Law. He is a highly qualified

lawyer in the field of Constitutional law,

International Law, Law of the European

Union. Mr. Kashkin lectured in English on

problems of Constitutional Law and Russian

legal development in some universities of USA,

Great Britain, India, China, the Netherlandsand Belgium.

.

-

, -

.

-

-

,, , , -

.

The current paper by S. Ju. Kashkin, Head of the Chair of the European Union Law at the Moscow

State Legal Academy, Doctor of Legal Science, professor, is using the documents, materials, trans-lations, findings and concepts obtained as a result of the collective efforts by MSLA Chair of EU

Law. The author expresses his sincere gratitude to his colleagues from the Chair, and especially to

P.A. Kalinichenko, Candidate of Legal Science, whose fruitful cooperation was indispensable in

drafting this paper.

, -

, ..., .. -

, , , , -

. , -

... .. ,

.


4/80

S. Kashkin Strategy and Mechanisms of the Legislation Harmonisation

between Russia and the European Union as Key

Components of their Effective Mutual Developmentin the XXI century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

.

XXI .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Contents


5/80

S. Kashkin

Strategy and Mechanismsof the Legislation Harmonisation

between Russia and the EuropeanUnion as Key Components of their

Effective Mutual Development

in the XXI century


6/80

- 6 -

Contents

Introduction: Russia in the context of a Wider Europe . . . . . . . . . . . . . . . . . . . . . . . 7

I. Harmonisation of legislation as the key issue in the development ofmutual relations between Russia and the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101. Objective need for advancement of cooperation between the European Union and the Russian

Federation in legislative sphere . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102. PCA as the basic document in the mutual relations between the Russian Federation

and the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3. Harmonisation of legislation from the point of view of PCA . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

4. Definition of harmonisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

5. Harmonisation of the legislation concerning Common European Economic Space . . . . . . . . . . . 13

II. Corpus Juris for the United Europe: shaping of the Common Economic Spaceand recognition of the legal standards of the European Union in Russia . . . . . . . . . . 141. Social angle of Russias inclusion in the process of European integration . . . . . . . . . . . . . . . . . 14

2. Common Economic Space as an element of the common European space . . . . . . . . . . . . . . . . . 15

3. Reception of legal standards of the European Union as a necessary precondition

for the participation of Russia in integration processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174. Development scenarios of legal integration in Russia and the European Union. . . . . . . . . . . . . . 18

III. Common European Law Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201. Harmonisation of the Russian law in the context of legal reform . . . . . . . . . . . . . . . . . . . . . . . . 20

2. Legislative harmonisation from the point of view of competency delimitation . . . . . . . . . . . . . . 21

3. Comparative analysis of the provisions of Article 55 of the PCA with Russia, Article 51

of the PCA with Ukraine and Article 50 of the PCA with Moldova . . . . . . . . . . . . . . . . . . . . . . 23

4. The agreement on application of the PCA Article 55 and establishment of the Common

European Law Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

IV. Creation of the institutional and legal mechanism of legislative harmonisation . . . . 25

1. The basic mechanisms of legislative harmonisation in Europe . . . . . . . . . . . . . . . . . . . . . . . . . . 252. Mechanisms of legislative harmonisation in Member States of the European Union . . . . . . . . . . 25

3. Mechanisms of legislative harmonisation in accession countries . . . . . . . . . . . . . . . . . . . . . . . . 26

4. The mechanism of legislative harmonisation in Switzerland. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

5. Mechanism of legislative harmonisation in the framework of the European economic space. . . . 27

6. Comparative analysis of the EEA and PCA institutional mechanisms. . . . . . . . . . . . . . . . . . . . . 29

7. The phenomenon of dual obligation and the role of other regional unions in harmonisation

of the legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

8. The harmonisation mechanism of the legislation in other European PCA partner states . . . . . . . 31

9. Mechanism of legislative harmonisation for Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Conclusions and proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40


7/80

- 7 -

Introduction: Russia in the contextof a Wider Europe

Approximation of the Russian legal space to the European one is too diverse and difficult anissue to be described in complete details in a small position paper such as this. Therefore,only the basic views tentatively laid down herein will inevitability comprise some reticenceand a few rather rough sketches, which may stir discussion but should help to finally devel-

op a long-term strategy for the basic approach to the solution for this vital and forward-look-ing issue.Relations between Russia and the European Union should be looked upon, first of all,

through a prism of the concept of A Wider Europe which increasingly becomes a realityboth in economic and in political and legal sense.

The concept of a Wider Europe is still in the development stage and has not finallyevolved.

Some Member States of the Union see it as the German-French locomotive to which lessactive, especially the new members are attached.

Others like, for example, M. Emerson, Head of the Centre for European PoliticalStudies, in his recently released book specially devoted to this question, envisages WiderEurope united with Wider Middle East including North Africa and Near East rich in oil1.

A number of scientists support the idea of a Wider Europe with changeable bordergeometry depending on the arrangement of interests and dialogue of geopolitical forces.

The EU Commission proceeds from a more balanced assumption and, by issuing fromgeographical and civilisation criteria, regards the present Member States of the Council ofEurope as the most likely participants of a Wider Europe.

However, regardless of the approach to a Wider Europe, it is impossible to imagine itwithout Russia, the biggest European state occupying a good one third of its territory. It isimpossible to tear off enormous resource opportunities, scientific, intellectual, cultural andhuman potential of Russia from Europe. Without Russia there cannot be full-fledged Wider

Europe.While analysing the problem of harmonisation of Russian and EU legislation, we pro-

ceed from a number of key assumptions: such a process should be viewed through a prism of and in parallel with difficult and

long-term shaping process of a Wider Europe, which is natural and inevitable; it is designed for the elimination of dividing lines in Europe and facilitation of stabil-

ity and sustainable development on the continent as a whole. Hence, non-participation inshaping of a Wider Europe for Russia can only lead to its isolation and render it incapableof influencing such development;

Wider Europe does not suggest immediate full membership of all its participants in the

European Union. Rather, it is a system for creating advanced neighbourly relations betweenthe Union and non-member countries. Therefore, the criteria of integrated construction of theWider Europe should not be based on strict EU membership regulations arising from Article


8/80

Strategic and Practical Aspects of the Legislation Harmonization between Russiaand the European Union. Chapter I

- 8 -

49 of the EU Treaty, but, in the first place, a basic minimum including economic prosperity,political stability along with effective and fully democratic management of internal affairs.Very important here are sufficiently effective interface between the state bodies, smoothfunctioning of the legal system and independent judiciary capable of protecting propertyrights2;

on such minimum required basis, participants of the Wider Europe could begin theconstruction of the relationship of close interaction, peace and cooperation. To encouragethis process the Union, also on the basis of the Constitution of Europe, can give the neigh-

bour countries various privileges and advantages while acting within various commonspaces allowing to group and to a certain extent systematise the similarities between vari-ous groups of interests of the European Union Member States and neighbour countries;

consequently, cooperation within the framework of a Wider Europe should not bedesigned up to any uniform standard for both the accession states and neighbouring coun-tries. It can only follow the already practically tested diversified process with distinctionsdepending on the fitness of the economy and the willingness of the governments in differentcountries;

this process should develop according to mutually agreed parameters, milestones andphases, while achievement thereof should be continuously monitored. Thus, it is very impor-tant to keep the sequence and schedule of transition from one form of relations or stage toanother. So, first of all, it is necessary to fully implement the provisions of already existingPartnership and Cooperation Agreements with Russia and the CIS states;

as the process develops further, it would probably be feasible to further develop thePartnership and Cooperation Agreement (taking into account its shortcomings identified inthe course of practical work) to achieve a new higher legal level (of an agreement on goodneighbourhood and single spaces) with the simultaneous extension of its scope and coverageand strengthening the control of the execution of mutually assumed obligations.

Furthermore, the significance of comprehensive monitoring of these processes should growsteadily while the degree of interdependence should be reinforced;

expansion of the legal basis could provide for the coverage of a Wider Europe with thefour freedoms (movement of goods, capitals, labour and services) along with more preciseand strict regulation of the four Common European Spaces. Expansion of the scope shouldtake place by sector through more profound cooperation in specific spheres of the economyand social development (ecology, power sector, transport, law and order, healthcare, etc.). Inthe document by the European Commission these basic spheres are listed in sufficient detail:

preferential trade treatment, mutual opening of markets, regulated migration, cooperation incountering common security challenges, management of crisis situations, human rights, cul-

tural and educational cooperation, R&D, transport, power sector, telecommunications,mobilisation of new funding sources, assistance to innovations and protection of the intel-lectual property rights3;

of special significance could be the various kinds of time exceptions applied in a dif-ferentiated mode on an individual basis, protective clauses or transitive provisions allowingto create optimum conditions for the cooperation between the EU and each specific countryand especially with Russia with its multiple particulars;

furthermore, relations with Russia are to be based not only and not so much upon theadaptation of the Russian legislation to the European standards as on the basis of mutualsearch for optimum standards acceptable for both parties. Such approach would be to the

advantage not only for Russia, but also for the European Union.It appears that the position of the European Union on the problem of a Wider Europeshould be transferred from the expert to fully official category, that is, the European Union


9/80

S. Kashkin. Strategy and Mechanisms of the Legislation Harmonisation between Russia and the EuropeanUnion as Key Components of their Effective Mutual Development in the XXI century

should produce the relevant Green or White Book more specifically dealing with thestrategy of actions towards a Wider Europe.

Carefully thought-over financing process of construction of a Wider Europe and, when-ever possible, its translation from a publicly funded to a commercial basis is necessary. In

particular, the European Investment Bank and the European Investment Fund of the EU

could engage into that.It is also important to create an institutional body to monitor the process for shaping theWider Europe. Perhaps there are reasons to create for these purposes a special body such asthe European Convent with democratic participation of all stakeholders. Separate advisoryand expert functions could be commissioned by the UN Economic Commission for Europe,the Council of Europe and some European international NGOs, and the community associ-ations capable of promoting the emergence the civil society foundations in Wider Europecapable of balancing increasing supranational statehood tendencies.


10/80

.

- 10 -

I. Harmonisation of legislation as the key

issue in the development of mutual

relations between Russia and the EU

1. Objective need for advancement of cooperation

between the European Union and the RussianFederation in the legislative sphere

Already for a few centuries our home country has been the largest state in Europe. Peoplesof Russia and Europe are united by a common history, common traditions and common spir-itual and cultural values. Russia is an integral part of western civilisation occupying in it aspecific and original position of the multinational country situated on two continents andimpersonating dozens of different cultures.

Perestroika and the end of Cold War caused Russias renewal in the early 1990s and the

onset of a democratic political regime with steady orientation. Emergence of the newdemocratic Russia has coincided in time with the advent of the European Union.The Russian Federation is not a member of the European Union; however, this does not

by far belittle the significance of the developing relations between the European Union andRussia for both the two of them and for the entire region and the world as a whole.

For Russia, the EU is the main trading partner, with the Member States of the Unionaccounting for nearly 55 % of Russias foreign trade turnover. In turn, in the foreign tradeturnover of the Union, Russia occupies the 5thplace (22 %), but even more importantly, insuch an area as energy supply it is first and uncontested.

Besides the existing economic preconditions, establishment of closer mutual relations is

necessary also because after the accession of Finland into the European Union in 1994,Russia and the Union became neighbours with a common border of 1313 km in length.After the latest EU enlargement in 2004 our common border has increased up to 2200 km.The common border always means common cross-border problems that have to be resolved,

probably, only by common efforts.But most importantly, the thing that determines development and expansion of ties

between the Russian Federation and the Union, is the dependence on the substance andnature of the relations of stability and safety in Europe, i.e. the new Europe free of divid-ing lines, ideological confrontation, but still not free from the armed aggression, acts frominternational terrorism, human rights infringements, economic uncertainty, rampant crime

and other problems.Obviously, the indicated conditions dictate the vital need of developing mutual relationsbetween Russia and the Union on a broad range of issues.


11/80


- 11 -

2. PCA as the basic document in the mutual relationsbetween the Russian Federation and the EuropeanUnion

The contemporary legal basis for the above-mentioned relations is established by thePartnership and Cooperation Agreement underpinning the partnership between the RussianFederation on one hand, and the European Communities and their Member States, on theother hand, signed on June, 24, 1994 on the island of Corfu, Greece4. The Federal Assemblyof the Russian Federation ratified the Agreement on November, 19965. The agreement tookeffect as of December 1, 1997, after its ratification by the European Parliament and all of thenational parliaments of the Union Member States and Communities (Germany was the lastone to ratify the agreement).

The Agreement belongs to the category of international treaties of the Union made joint-ly by the Communities and Member States. It has been concluded for the period of 10 years

with the subsequent annual tacit extension of the Agreement if neither party declares itsdenouncement. The Agreement contains a preamble, 112 articles, ten annexes, two proto-cols, some joint and unilateral statements and correspondence.

Partnership and cooperation agreements have also been signed by the European Unionwith 10 former republics of the Soviet Union (all CIS countries except for Tajikistan). Thecontents and the text of such agreements coincide almost completely and therefore thePartnership and Cooperation Agreement can be referred to as a kind of model agreement.However this fact does not challenge the significance which has the Agreement betweenRussia and the Union for the development of mutual relations and for maintaining of the sta-

bility in the European region as a whole, as well as for the creation of favourable conditions

for Russias economic integration process within the European nations.The PCA is a framework agreement. The Partnership and Cooperation Agreementbetween Russia and the European Union of 1994 has laid strong foundations for the devel-opment of dialogue between the parties on political, economic and cultural issues in the

beginning of the XXI century. The 1994 Agreement has a basic nature and contains generalprovisions on cooperation between the European Union and Russia. The PCA has a frame-work nature because many of its positions require further development and specific defini-tions within the framework of special bilateral agreements on individual issues. Some PCAarticles stipulate not simply an opportunity, and even necessity of the conclusion of suchagreements (for example, articles 2122).

The important feature of PCA is that it is future-oriented. From the outset, theAgreement has been adjusted to operating in the conditions of free-market economy inRussia where there will be a market economy, and Russia will enter the WTO. One moreimportant factor that underscores the prospective nature of the PCA is its final orientation tothe establishment of a free trade areabetween the Union and Russia (Article 1, PCA).

3. Harmonisation of legislation from the pointof view of PCA

Consistent implementation of the Agreements provisions leads to the deeper integrationbetween the Parties. Partnership and Cooperation Agreement outlines in its provisions anentire set of means aimed at the enhancement of such an integration. One of the most impor-


12/80


- 12 -

tant and effective means is the harmonisation (i.e. approximation) between the legislationsof Russia and the European Union.

Article 55 of the PCA contains provisions for legislative approximation between theParties as an important condition for furthering and strengthening of the economic relations

between Russia and the Community. As it is specified in the above-mentioned Article,

Russia aspires to the gradual achievement of compatibility of the legislation with the one ofthe Community. The process of law harmonisation envisaged by the Parties will be carriedout in various branches of law. In particular, the Agreement provides for legislation approx-imation on the issues of company law, banking law, company accounts and taxes, protectionof workers at the workplace, financial services, rules on competition, public procurement,

protection of health and life of humans, animals and plants, the environment, consumer pro-tection, indirect taxation, customs law, technical rules and standards, nuclear laws and regu-lations and transport.

This tool is important and effective because:firstly, it provides for the reception by Russia where the market economy is so far just

being re-established of the available and tested legal regulation mechanisms of market and

closely related relations;secondly, the EU standards in many respects repeat the standards of the WTO, and there-

fore the reception of the EU law promotes the accession of our country in the World TradeOrganisation;

thirdly, harmonisation of legislation is capable of creating a strong legal basis for theenhanced partnership and its evolution into a stable neighbourhood based on the commonmarket between Russia and the EU.

Without doubt, the priority in cooperation between the Russian Federation and theEuropean Union in the long-term prospect belongs to the building of closer economic rela-tions. However, among the purposes of the PCA listed in Article 1 we find the provision for

an appropriate framework for political dialogue between the Parties, encouragement for sus-tainable development, strengthening of political and economic freedom, support of Russianefforts to consolidate its democracy, providing a basis for social and cultural cooperation,and encouragement of the activities of mutual interest. Hence, the Partnership andCooperation Agreement is a document of complex nature aimed at the development of mutu-al relations between the Parties in various walks of life.

4. Definition of harmonisation

Harmonisation, alongside with unification, is one of the methods of legal integration con-sisting essentially in the conversion of legal rules by their reduction to the same denomina-tor. Harmonisation is a softer method of legal integration that takes place on the basis ofapproximation of the internal law to a certain legislative model. Harmonisation does notmean uniformity but is based on the legislation approximation between different states.

At the same time, it is extremely difficult to give the common definition of harmonisa-tion as a process in the framework of legal integration in Europe. Even in the framework ofMSLA Chair of EU Law we could not come to shared opinion.

Thus, A.O. Chetverikov, Candidate of Legal Science and Assistant Professor, believesthat the method of harmonisation means the issuance by the Union of legislation fundamen-

tals according to which Member States adjust their internal laws and subordinate legisla-tion. By means of harmonisation the Union pulls together legal systems of the MemberStates with each other, but does not introduce full homogeny.


13/80


In turn, P.A. Kalinichenko, Candidate of Legal Science, gives his own definition of har-monisation, according to which harmonisation is a method of legal transformation on thebasis of the model rules of conduct formulated with a view to approximation of national legal

systems without achievement of full homogeny in reception and formulation by the states of

such model rules.

Finally, Professor S.J. Kashkin, Doctor of Legal Science, believes that harmonisationor approximation of the national law consists in the introduction of general principles oflegal regulation in specific areas of public life where the states more or less still have some

room for their own legal regulation.

5. Harmonisation of the legislation concerning CommonEuropean Economic Space

Development of partnership and cooperation between Russia and the EU at the present stagehas taken them to the point of shaping a closer neighbourhood with some features of associ-ation. This idea is reflected today in the concept of creation of four common spaces between

Russia and the Union: Common European Economic Space, Common Space of External

Security, Common Space of Freedom, Safety and Justice, and Common Space of Science,

Education and Culture.

Those four spaces should emerge on the basis of the PCA and the instruments and mech-anisms stipulated therein. In our opinion the tool of legislation approximation as stipulated

by Article 55 of the PCA should also become a reference point for their establishment.It appears that the central part in the system of the Common Spaces will be played by

Common European Economic Space (CEES). Its concept is for the most part already elabo-

rated (See the Report of High-Level Group of November 8, 2003). However, the fact thatlegislative harmonisation should become a key element for securing both CommonEuropean Economic Space and all four spaces together does not raise any doubt. In particu-lar, in the above-mentioned report it is emphasised, that CEES should act as an open inte-

grated market between Russia and the European Union, based on the common or compat-

ible rules and systems of regulation.Relations between Russia and EU have an extremely diverse nature and cover virtually

all areas of cooperation, but most importantly those relations have and will have direct influ-ence on the life of common people.


14/80

.

- 14 -

II. Corpus Jurisfor the United Europe:shaping of the Common Economic

Space and recognition of the legalstandards of the European Unionin Russia

1. Social angle of Russias inclusion in the processof European integration

The common Russia-EU economic space will serve as the largest contribution to process ofthe European integration and in the building of the Wider Europe in case of a success of that

project.This landmark will simultaneously serve as a natural furtherance of the enlargement of

the contemporary European Union through accession of the Eastern European andMediterranean countries. The latter, quite obviously, should not lead to the emergence in

Europe of a new Iron Curtain, creation of certain sanitary cordon on the western borders

of Russia in the form of rigid frontier treatment, quotas, dumping duties and other barriers.Such scenario, which probability cannot be dismissed, will contradict not only to basic

interests of our country, but also the purposes of the European Union!

In this connection it is necessary to remind some provisions of the basic instruments ofthat organisation. In 1957, in the preamble of the Treaty establishing European communitythe determination has been expressed to lay the foundations of an ever closer union amongthe peoples of Europe and by common action to eliminate the barriers which divide

Europe.In 1992, in the European Union Treaty with the historical importance of ending the

division of the European continent is once again recalled, while the Treaty itself is dubbedas a new stage in creating an ever closer union among the peoples of Europe (Article1). Any European state has the right to become a member of the Union provided that it isdemocratic, based on the rule of law, and respects human rights and fundamental individualfreedoms.

As a whole, this is repeated also in the new Constitution of Europe of 2004, which is stillpending ratification and coming into force.

The history and geography cannot be changed by political decisions: Russia is a part

of the Western civilisation; it has appeared as such and will remain as such. Until Russiafinds its place among united European nations, the unification of Europe will not becomplete!


15/80


- 15 -

From the above one can draw a conclusion that the Union should not be considered akind of closed club, access to which for Russia is prohibited or impossible. More likely, theopposite:Russia being historically a member of the family of European nations (that is onceagain confirmed by acceptance of the Russian Federation in the Council of Europe in 1997),

can apply for an establishmentof especially close association with the European Union, and

in due course, even on accession to the EU as a full Member State cannot be ruled out.Moreover, Article 79 of the 1993 Constitution of the Russian Federation provides forthat. The Russian Federation Constitution refers to the concept ofsupranationality andrecognises an opportunity for Russias participation in supranational organisations or simi-lar associations of states. We refer to the contents of Article 79:

Article 79

The Russian Federation can participate in interstate associations and transfer to them apart of powers according to international treaties if this does not either entail restrictionof rights and freedoms of the individual and citizen or contradict to the foundations ofconstitutional order in the Russian Federation.

Other conclusion will consist in the necessity of active steps on the part of the Presidentand Government of the Russian Federation with a view to launching the real process ofmutual integrationboth in economic and in other spheres. It should be recognised that todaythe interaction of Russia and the European Union both on the level of foreign policy legiti-mate representative structures goes on slowly and is encumbered by excessive bureaucracy.

Russia can and should establish supranational ties with the European Union! Suchstep would become a magnificent illustration of achieving the goal of building a WiderEurope. The essence of such a mechanism should consist in preventing the emergence ofnew dividing lines on the continent and facilitating Russias cooperation opportunities with

both the EU and with the countries within it.Achieving approximately the same degree of realisation of four freedoms as what of theEU countries is possible even without participation in the decision-making process, but with

participation in their development and naturally in the decision-making on their implemen-tation within Russia.

A somewhat similar scheme has been already used when establishing current relationsbetween Russia and NATO on the basis of the Rome Declaration of 2002. In fact, Russia hasreceived quasi-membership in that organisation without signing any allied obligations. Thesituation with the EU is more difficult if for no other the reason, than because the EU has itsown legal system which does not fit within the notion of international law.

2. Common Economic Space as an elementof the common European space

Process of mutual rapprochement of Russia and the EU is capable of developing in severaldirections including in parallel to each other. Their common purpose is the creation on thevastEuropean space from Porto to Vladivostok covering the most different kinds of socialrelations.

A. The first integration project already under development is the Common EconomicSpace that will enable Russias entry into the European markets of goods, services, humanresources and capital.


16/80


- 16 -

A fundamental yet controversial question in this connection is free movement of per-sons. Compared to the other three economic freedoms of movement of goods, services andcapitals, the PCA does not even guarantee in any way any elementary opportunities for itsexercising. This is, undoubtedly, a gap in the PCA that requires urgent filling. It can be filled

by the conclusion of a special protocol to the PCA, devoted to free movement of persons.

In our opinion, a full-fledged economic space is impossible without free movementof persons. The first step in this direction should be made with regard to establishment ofvisa-free movement of the citizens of Russia in the territory of the EU and, accordingly, cit-izens of the Union in the territory of Russia. It cannot be ruled out that for this purpose,Russias joining of the Schengen agreements may be required.

B. Currently, a huge practical interest both for Russia, and for the European Union liesin the field of the struggle against international terrorism and other forms of criminalityalong with development of cooperation between our courts and law enforcement bodies.

In this connection creation alongside with economic also of the European Space ofFreedom, Security and Justice is equally vital. In this case, the experience already accu-mulated in the EU in terms of the establishment of such space within its territory can serve

as the basis.Such space should include not only participation of Russia in activities of the Unions

law enforcement bodies such as Europol, Eurojustice or the Schengen information system,but also real mechanisms of harmonisation of the body criminal law. Among others, the pro-visions concerning the European arrest warrant should also cover Russia.

C. Approaches to the problem of sovereignty vary significantly today. The nature ofmodern society, modern threats, their depth and, most importantly, their interdependence isso extensive that it does not allow any country, either the USA, or Russia, or India to keepon navigating alone in this tumultuous globalise world.

Similar conditions dictate the need for establishing the Common Space of External

Safety which could include tripartite dialogue between Russia, the EU and NATO. In anycase, the creation of such space could become a strong basis for a new system of collectivesecurity in Europe, which has not been fully achieved ever since the end of the Cold War.

Close coordination of the actions of the military may lead to shaping of the defenceunion also by means of participation of Russian armed forces in collective operations withthe EU rapid deployment forces are being currently created.

D. As it has been shown above, the European identity is an objective historical factor ofRussias development. However, the European identity in itself does not provide for theEuropean consciousness, but only promotes its development.

Undoubtedly, the European consciousness is a modern, different and higher level of self-identification than national consciousness. In the Russian society and, unfortunately, in some

other European countries, likewise, national consciousness still prevails.The nation in Russia has emerged already by the end of XVIII century and belongs to

the so-called third type of the nations, i.e. the most ancient ones. Consequently, in Russiathere are the old national traditions and well-developed sense of nationality. The nation inRussia took shape during the times of the empire, and that is why here national ideas con-tain elements of national chauvinism, one of the most dangerous and self-destructive typesof nationalist ideas in our society. Official internationalism of the Soviet times has notchanged, but only has strengthened national consciousness in Russia.

The European consciousness does not preclude national consciousness at all; rather, itadvances, supplements and enriches such consciousness. It represents a new level of deveop-

ment of national traditions, ideas and feelings.Development of the European consciousness within the Russian society should bebacked by the creation of the Common Space of Research, Education and Culture. Such


17/80


- 17 -

space should envisage joint research projects, development of the European education inRussia and comparability of the Russian educational standards with the European ones, pro-grammes for studying and development of the Russian culture along with cultures and lan-guages of other peoples without separation from each other.

Emergence of such space will promote surfacing of the new Russian mentality free from

ideological bias and image of an enemy still found in our society.Undoubtedly, when building such space, adoption of the corresponding Russian statuto-ry providing participation of our country in relevant initiatives and programs of the EuropeanUnion will be necessary.

E. Besides the four spaces described above, it is also possible to establish the Europeanenvironmental and humanitarian (in sphere of protection of human rights) spaces.

3. Reception of legal standards of the European Union

as a necessary precondition for the participation ofRussia in integration processes

Together with doubtless economic achievements (creation of the Common Market, com-mon currency, high social standards, etc.) to a set of major merits of the European integra-tion belongs shaping within the framework of the EU of a new legal system which is inher-ently supranational and is designed to play the role of "general law" for all peoples of

Europe.

We have got used to the fact that the term European law is understood and used intwo senses. In the modern interpretation, it is a synonym of the term the law of the

European Union. In the outdated understanding (or in a broad sense) the European lawrefers to an agglomeration of rule existing in territory of the European continent, includingthe common principles of law, rules within national legal systems of the European countries(including Russia) as well as the rules of European international law.

However, during the recent years, the legislative harmonisation as a means and a methodof conversion of the regulatory framework of the Member States resulting from integrativeessence of the European Union law, and its dissemination beyond limits of the Union haveled to an interesting result.

Today, all the 25 Member States harmonise and unify their legislation according to theone of the Union, while 3 more accession states achieve compatibility of the legal system

through the same methods since that is one of their accession criteria. In part, harmonisationof national legislation with the EU law takes place in the EFTA countries. Within the frame-work of the European Economic Area and the Schengen achievements, Iceland, Norway andLiechtenstein carry out legislative harmonisation; Switzerland has concluded special bilat-eral agreements envisaging measures for legislative harmonisation with the European Union.Russia, Ukraine, Moldova and even Belarus have undertaken to harmonise their legislationin accordance with the EU law on the basis of partnership and cooperation agreements. Intotal, without counting the so-called pre-accession countries (Serbia and Montenegro) itturns out that 36 countries out of 42 states of Europe are involved in the process of harmon-isation of their internal regulatory framework with the legislation of the EU.

Hence, the process of legislative harmonisation in Europe on the basis of the EU law isbringing the modern understanding of the European law as a synonym of the law of the EUcloser to its previous understanding as a law extending to the entire territory of Europe or


18/80


- 18 -

even going beyond its geographical limits. The European Union law becomes, thus, atruly European law.

In this respect the legal system of the European Union is quite comparable to the Romanlaw and its well-known Justinian Code (Corpus Juris) adopted in many European countriesand having affected among others the legal system of Russia.

On the basis of legal achievements of the EU the process of European integration isunder way. Any integration project of the European Union, first of all, receives legalapproval, and only then is implemented in practice.

The European Union law plays a role of the single standard determining the rules of

the game of all participants of the Common Market including both Member States, and

citizens and legal entities of the Union.To be accepted into the Union, any accession state should adopt its legal achievements

jointly dubbed by the by French term acquis (acquis communautaire achievements of theCommunity, oracquis de l'Union achievements of the Union).

In a similar way, the Russian Federation in the process of shaping the common Europeanspace should gradually adopt the legal achievements of the European Union and thus

accomplish their full or partial reception.Even in the case of a delay or failure of the above initiatives, inclusion of carefully

thought-over EU rules in the domestic legislation will enable improvement in the Russianlaw that in the end will be helpful both for the state and ordinary citizens.

Establishment of the common European space in economic and other spheres is

impossible without emergence of a single legal space; the latter, on the contrary, is capa-

ble of developing regardless of integration processes in other spheres.

4. Development scenarios of legal integration in Russiaand the European Union

Legal integration between Russia and the European Union can have unilateral and/or bilat-eral (mutual) nature.

In the former case, it would have to do with the reception by our country of the legalachievements of the EU on the level of:

a) education: inclusion of the European Union law in the obligatory standard of thehigher legal education. Creation of the specialised EU law departments both in Moscow andin provincial higher educational institutions alongside with extension and development of

the volume of the EU law taught at educational institutions would also be feasible. It is nec-essary to publish more educational literature, handbooks, translations and comments to thelegislation and judiciary practice of the EU. In the educational process, increasing orienta-tion to concrete spheres and sectors of the European Union law and reinforcement of the linkwith practice is vital.

That includes also coverage of the same discipline by means of publishing brief manu-als and brochures (for example, European Parliament, Common Foreign and SecurityPolicy of the European Union, Schengen Visa, Europol);

b) Legal drafting activity: examination of the current legislation of the RussianFederation to identify its compliance with the standards of the European Union while reveal-

ing and eliminating existing contradictions by modifications and amendments to the laws inforce and subordinate legislation. All new legislation of the Russian Federation should bedrafted in compliance with the European Union laws;


19/80


c) International treaties and agreements with the states of the former USSR: in thiscase, the issue is the use of European Union legal toolkit with a view to integration with theCIS countries, and among others within the framework of the Eurasian EconomicCommunity.

Bilateral legal integration between Russia and the EU is a higher level of interface

which should be effectuated on the basis of mutual agreements:) The agreement On cooperation in the legal sphere. A similar agreement can besigned on the basis of the effective Partnership and Cooperation Agreement of 1994 whichstipulates the need of harmonisation between legal systems of Russia and the EU.

On the one hand, it could include provisions for mandatory assessment of the newRussian legislation by representatives of the Union, while on the other hand, it could alsofeature provisions about the need of preliminary consultations with the Russian Federationwhen elaborating new elements of the EU law on issues of mutual interest (foreign trade,visa regime, prevention of crime, environmental standards, etc.);

b) The agreement on the common economic space and other agreements providing for

partial extension to Russia of the EU Common Market treatmentwith simultaneous intro-

duction in the Russian territory of relevant acts of the Union (Regulations and Directives ofthe EU governing and supporting freedom of movement of workers, freedom of establish-ment and provision of services, etc.);

c) The Constitution of the European Union in its Article I-57provides for an opportu-nity of development privileged relations with neighbour countries that could promoteRussias integration with the EU.

d) Submission of an applicationby Russia on accession to the European Union andofficial recognition of our country by the EU Council of the official accession countrystatus.

In this case, the Russian Federation will launch full incorporation of all EU law rulesinto its own legislation.


20/80

.

- 20 -

III. Common European Law Space

1. Harmonisation of the Russian law in the contextof legal reform

The largest shortcoming of the ongoing legal reform in contemporary Russia is its laggingbehind the emerging tendency in the legislation of civilised countries towards approximationand harmonisation of rules and standards.

Such approximation, first of all, is dictated by globalisation of interests in trade andmovement of people and rapid development of the legislation in cross-border spheres (trans-

port, communications).As it has been shown above, the 1993 Constitution of Russia as a key element of ongo-

ing legal reform in its Article 79 gives the green light to Russias participation in integrationprocesses. Nothing prevents such processes from moving ahead in field of legislation.

Harmonisation of the Russian law with the legislation of the EU fully complies with therules and spirit of the Constitution of the Russian Federation.In the European countries of today, such harmonisation is performed on the EU level;

Member States of the Union are obliged to unify and harmonise their own legislation accord-ing to the prescriptions of the Union, while EFTA Member States do it according to theAgreement on the CES, accession states according to the Europe Agreements onAssociation, and partner states, within the framework of partnership and cooperation agree-ments. Process of harmonisation covers today almost all European countries.

It is fully logical for Russia to pursue the measures for legislation approximation withother European countries (rather than, for example, with the countries of North America).The Russias legal system of today as a whole is more similar to legal systems of the

Romano-Germanic legal family despite of its still remaining transitional nature and remain-ing rules from socialist law in some spheres of legal regulation. As R. David put it seventyyears of socialism will undoubtedly affect the law to which the former socialist countries willcome6. However, the experience of the countries of former socialist block and in particularformer Baltic republics of the USSR testifies about the existence of practical opportunity ofcreation in the framework of the transitional legal systems of the new legislation compat-ible with rules of the European Union.

Moreover, Article 55 of the Partnership and Cooperation Agreement (PCA) between theRussian Federation and the European Union of 1994 (ratified by Russia in November 1996and effectuated in December 1997) which establishes the current legal platform of mutual

relations between the Russian Federation and the Union, provides for such legislativeapproximation.Article 55 of the Partnership and Cooperation Agreement is formulated as follows:


21/80


- 21 -

Article 55. Legislative Cooperation

1. The Parties recognise that an important condition for strengthening the economic linksbetween Russia and the Community is the approximation of legislation. Russia shallendeavour to ensure that its legislation will be gradually made compatible with that ofthe Community.

2. The approximation of laws shall extend to the following areas in particular: companylaw, banking law, company accounts and taxes, protection of workers at the workplace,financial services, rules on competition, public procurement, protection of health and lifeof humans, animals and plants, the environment, consumer protection, indirect taxation,customs law, technical rules and standards, nuclear laws and regulations, transport.

As we examine the above-mentioned provisions, it becomes clear that Article 55 of thePCA contains three key points:

1. The Parties recognise that an important condition for strengthening the economic linksbetween Russia and the Community is the approximation of legislation.

2. Russia aspires to ensure that its legislation will be gradually made compatible withthat of the Community.

3. Process of approximation of legislations extends in particular, to the following sectorsof law:

company law; banking law; company accounts and taxes; protection of workers at the workplace; financial services; rules on competition; public procurement;

protection of health and life of humans, animals and plants; the environment; consumer protection; indirect taxation; customs law; technical rules and standards; nuclear laws and regulations; transport.That makes 15 spheres of legislative approximation. Furthermore, they are not major

spheres of law.

2. Legislative harmonisation from the point of viewof competency delimitation

A mere enumeration of legislation approximation sectors at once makes one recall and keepin mind when formulating the harmonisation models of legal space the fact that the Russian

Federation is a federal state. And just like with any federal state, it is typical for Russia todistinguish between the competencies of the federation and its subjects as it is set out in theRussian Federation Constitution of 1993.


22/80


- 22 -

Let us turn to Articles 7173 of the Russian Federation Constitution and focus on theprovisions of the Constitution concerned by Article 55 of the PCA:

Article 71

The jurisdiction of the Russian Federation includes:

) establishment of the principles of federal policy and federal programmes in the sphereofstate, economic, ecological, social, cultural and nationaldevelopment of the RussianFederation;f) establishment of legal basis for a single market; financial, currency, credit, and cus-toms regulation, money issue, the principles of pricing policy; federal economic ser-vices, including federal banks;

g)federal budget, federal taxes and dues,federal funds of regional development;h)federal power systems, nuclear power-engineering, fission materials, federal trans-

port, railways, information and communication, outer space activities;

n)judicial system, procurator's office, criminal, criminal procedure and criminal-execu-tive legislation, amnesty and pardoning, civil, civil procedure and arbitration procedurelegislation, legal regulation of intellectual property;

p) meteorological service,standards, metric system, horometry accounting, geodesy andcartography, names of geographical units, official statistics and accounting;.

Article 72

1. The joint jurisdiction of the Russian Federation and the subjects of the RussianFederation includes:e) nature utilisation, protection of the environment and ensuring ecological safety; spe-cially protected natural territories,protection of historical and cultural monuments;g) coordination of issues of health care;protection of the family, maternity, paternity andchildhood; social protection, including social security;i) establishment of common principles of taxation and dues in the Russian Federation;

j) administrative, administrative procedure, labour, family, housing, land, water, and for-est legislation; legislation on subsoil and environmental protection;.

Article 73

Outside the limits of authority of the Russian Federation and the powers of the RussianFederation on issues under joint jurisdiction of the Russian Federation and the subjectsof the Russian Federation, the subjects of the Russian Federation shall possess full state

power.

It is not necessary to undertake any special study to draw a conclusion that provisionsof the PCA Article 55 touch upon all three levels of the legislative competence of federalbodies and the ones of the subjects of the Russian Federation.


23/80


- 23 -

It may be that the harmonisation mechanism for the Russian legislation should pro-vide for participation of federation subject authorities in such process, or at least, forsure, their opportunity of access to the process.

We would like to remind you that in this connection provisions of same Articles of theConstitution which we have intentionally omitted. According to Clauses (j) and (k) of Article

71 of the Constitution international treaties the Russian Federation and the external eco-nomic relations of the Russian Federation are included in the competency of the Federation,while according to Clause (), part 1, Article 72fulfilment of international treaties is in joint

jurisdiction of the Federation and its subjects. Therefore, execution of the PCA is not onlythe business of federal public authorities, but also of the authorities of the subjects of the

Russian Federation.

3. Comparative analysis of the provisions of Article 55

of the PCA with Russia, Article 51 of the PCA withUkraine and Article 50 of the PCA with Moldova

Further, it would be desirable to pay attention to the provisions of partnership and coopera-tion agreements signed by the European Union with other European CIS countries, in par-ticular, with Ukraine and Moldova.

PCA, as it has been already mentioned, is a model agreement (the PCA with Russiabeing a prototype), and therefore there is nothing surprising in the fact that similar regula-tions about legislative harmonisation are contained in Article 51 of the PCA with Ukraineand Article 50 of the PCA with Moldova.

The first two parts of the specified articles literally repeat the provisions of Article 55 ofthe PCA with Russia. However, Articles of the Ukrainian and Moldavian PCA also containthe third part, which is missing in the Russian PCA.

Part 3, Article 51 of the PCA with Ukraine and Part 3, Article 50, of the PCA withMoldova are identical:

The Community shall provide Ukraine (Moldova) with technical assistance as appropri-ate for the implementation of these measures which may include in particular:

the exchange of experts,

the provision of early information especially on relevant legislation, organisation of seminars, training activities, aid for translation of Community legislation in the relevant sectors.

One can only guess why similar provisions do not appear in the PCA with Russia. Whatis contained in the above-captioned Articles of the Agreements with Ukraine and Moldovais really a kind of a rough draft of a legal mechanism for implementing the PCA provisions.It is on such basis and with the use of such tools that legislation approximation and all activ-ities accompanying the relevant process should take place.

It cannot be ruled out that a similar item had been contained in the initial texts of thedraft PCA with Russia, but has not been included in the final body of the document, whicheventually has not been to the benefit of the Russian state and people in general.


24/80


To the credit of the European partners, they have provided and continue to provideRussia with certain technical support on this issue in the framework of the Tacis programme.However, when it comes to harmonisation of the legislation, involvement of a wider exper-tise on various levels is necessary for a thorough study of the issue.

Without doubt, when creating the harmonisation mechanism we should take into account

provisions of the above articles as a model and expression of the commitment of the partnerto provide such mechanism. Those provisions should be replicated when the PCA is extend-ed by the signing of the relevant protocols to it or when concluding on its basis a specialAgreement on Legal Assistance and Agreements on Application of the PCA Article 55.

4. The agreement on application of the PCA Article 55 andestablishment of the Common European Law Space

The Partnership and Cooperation Agreement is a framework agreement and on its basis specialagreements in the concrete spheres of cooperation are to be concluded. It is quite possible toconclude on its basis a special agreement about the application of the PCAArticle 55 whichwould provide the mechanism of legislation approximation between Russia and the Union.

Such an agreement could become one of the components of the Common European LawSpace (CELS) between Russia and the Union which logically proceeds from the measuresfor legislative approximation and can be organically incorporated in the concept of theCommon European Economic Space being developed today within the framework of thePutin-Prodi initiative.

The Common European Law Space should include four levels:A. Reception ofacquis de l'Union in the Russian legislation in the spheres outlined in

Article 55 of the PCA. This process should include establishment of the lists of acts by theUnion in the respective 15 spheres containing the rules necessary for replication in theRussian legislation. These lists could be tuned into protocols to the Agreement on applica-tion of the PCAArticle 55. It is necessary to identify also the respective Russian legislationwhich is subject to change with a view to harmonisation.

B. Creation of the mechanism for adoption of the new decisions of the European Unionin those spheres taking into account the interests of Russia. Harmonisation should take placenot only on the Russian part. It is a bilateral process if it is based on partner relations.

C. Achievement of homogeneity, i.e. uniformity of application and interpretation of har-monised acts by the Russian courts according to the existing practice of the European Courtof Justice. This can be accomplished if a special mechanism is in place similar to the oneapplied for the CES. That would become a European component of the judicial reformwidely discussed in Russia.

D. Future expansion of frameworks of harmonisation beyond the limits of the PCAArticle 55.

However, this requires thorough preparation including the study of the European Unionlaw and raising awareness about it, development of the relevant Russian legislation, draftagreements or agreements which would provide relevant mechanisms for implementation ofdifferent levels of the CELS, training of qualified staff and improvement of professional skillof the judges and officials.


25/80


- 25 -

IV. Creation of the institutional and legalmechanism of legislative harmonisation

1. The basic mechanisms of legislative harmonisationin Europe

Though lagging a little behind the other European powers in harmonisation of the internallegislation, Russia gets a unique advantage expressed in the opportunity of generalisationand use of the experience of such harmonisation already accumulated by other countries.

Creation of the institutional and legal mechanism for legislative harmonisation is, infact, the main problem. Implementation of the above-mentioned process will depend on it.At the same time, one cannot say that there exists any single universal scheme of harmoni-sation of the national law throughout the states of Europe. Mechanisms vary from country tocountry and function according to the specificities of each people and the status of the rele-vant countrys political and a legal system.

On the whole, it is possible to divide all harmonisation mechanisms of national legisla-

tion existing in Europe into 5 primary groups:1. Harmonisation mechanisms inside the European Union, in the EU Member States2. Harmonisation mechanisms in accession states.3. Harmonisation mechanism of the Swiss national law.4. Harmonisation mechanism within the framework of the European economic space.5. Harmonisation mechanism in other European partner countries.

2. Mechanisms of legislative harmonisation in Member

States of the European Union

The experience accumulated in the framework ofthe first group of mechanisms is so farunfortunately practically inapplicable to Russia. Member States directly take part in theestablishment of the EU acts to be harmonised with. Though their influence is sufficientlyrestricted by the qualified majority procedure in the Council, the legislation is still being har-monised exclusively up to their needs and interests.

Decision-making process is one of the most vulnerable elements of the European Unionper se. It is overburdened with trivia and in essence reflects the entire set of interstate inter-ests struggling within the Union.

The experience of new Member States in establishing the mechanisms of legislation har-monisation used before their accession into the European Union would be perhaps the mostuseful one for Russia. Here it is possible to find a great variety of approaches to such mech-


26/80


- 26 -

anisms. From rather a simple interfacing between the Ministry of Justice and Parliamentinthe Czech Republic on this question to the creation of an entire European Gateway inSlovenia. The latterincludes interaction between the national government, Slovene parlia-ment and EU bodies, interdepartmental cooperation and the activities of special working

groups of experts.

It is necessary to also take into account the fact that the new Member States as well asthe accession states were required to harmonise and unify the entire national legislation. ForRussia, such undertaking would be easier since activities aimed at harmonisation are limit-ed to 15 spheres listed in Article 55 of the PCA.

3. Mechanisms of legislative harmonisation in accessioncountries

The second group of approximation mechanisms is equally diverse. The most interestingexample is the institutional and legal mechanism of legislation harmonisation in Croatiawhere there is a special ministry for the European affairs supervising that process.Unfortunately, as of today, emergence of such institution in Russia is hardly possible.

The situation with harmonisation in Romania, Bulgaria and Turkey somewhat remindsthe contemporary Russian one: as such, relevant institutional and legal mechanism in thosecountries is missing. The harmonisation process relying on the provisions of agreements onassociation is performed exclusively at the political will of the decision-makers of the coun-try, which is aspiring to join the EU. The harmonisation is based on political and ideologicalmeasures. Especially pronounced this trend is in Turkey.

It appears that, it is unacceptable for Russia to act that way, since Russia, according to

Medium-Term Strategy for the Development of the Relations with the European Union (until2010) is not going to accede to the European Union or create association with the EuropeanCommunities. Thus, Russia has no such political and ideological incentive for harmonisationof the legislation as, for example, Bulgaria. Moreover, the described stimuli are prone tochange, while the mechanism replying on them is unsteady.

4. The mechanism of legislative harmonisationin Switzerland

The third group. The harmonisation mechanism of mutual relations between the EU andSwitzerland is also basically tuned on the political will. However, as opposed to Russia, hereeverything does not depend on the will of national decision-makers or, frankly speaking, oneleader: in the Swiss harmonisation mechanism the major part is playedby will of the major-ity, i.e. the tool of a referendum is used.

Switzerland is a member of the European Free Trade Association but not of the econom-ic space comprised by the Common Market between the EFTA and the EU. Switzerland doesnot participate in the CES mechanisms, and EFTA Court jurisdiction does not extend to it.

Relations between the EU and Switzerland are based upon 7 basic bilateral treaties

which were signed in 1999 and effectuated in 2001. The last one, the eighth treaty estab-lishing the joining of Switzerland to the Schengen acquis was signed in 2004 and has not yetcome into force.


27/80


- 27 -

The above-mentioned 7 treaties are devoted to special questions of cooperation andenvisage common model rules on the basis of the standards and rules of the European Union.Thus, ratification of the given agreements through referendum is the basic element in har-monisation of the Swiss legislation with the EU law.

The designated 7 bilateral treaties allow automatic extension of some categories of acts

by the Union to Switzerland. An example of such EU statutory act which is coveringSwitzerland is the Directive of the European Parliament and Council 2004/38/ of April29, 2004 on the right of citizens of the Union and their family members on free residenceand choice of domicile in the territory of Member States, amendment of Regulation (EEC)

No 1612/68 and repeal of Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,75/34/EEC, 75/35/EEC, 90/364/EEC and 93/96/EEC7.

Such relations, according to Dutch professor A. Kellerman, constitute enhanced bilat-eralism. Undoubtedly, relations between Russia and the EU are also built on a bilateral

basis; however, one can hardly imagine today a complete projection of the EU-Switzerlandrelations to the ones between the EU and Russia with regard to legislative harmonisation, forone simple reason. Treaties between the EU and Switzerland cover more narrow spheres and

are focused on more special questions in their framework. They are devoted to: Free movement of persons. Air transport. Carriage of goods and passengers by rail and road. Agricultural issues. Mutual recognition in relation to conformity assessment. Scientific and technological co-operation. Public procurement.

When comparing those fields with the 15 fields of legislative harmonisation according

to the PCA Article 55, only the last sphere coincides, i.e. public procurement, while 3 moremay somehow fit into them as individual issues. Harmonisation of the Swiss legislation hasa concrete, practical and applied character. Such harmonisation is not aimed at supportingthe creation of any economic union or even a free trade area in the GATT understanding ofthat notion.

The only thing that it is possible to introduce in the near future in the relations betweenRussia and the European Union based on experience of the EU-Switzerland relations is arealisation of free movement of persons, by the conclusion of a similar bilateral agreementor the separate report to PCA.

5. Mechanism of legislative harmonisationin the framework of the European economic space

The fourth group is made by the harmonisation mechanism created in the frameworkof the European Economic Area (EEA). The Agreement on the European Economic Areaof 1992 in effect since 1994 acts as a legal platform for the establishment and functioning ofthe EEA8.

Members of the Agreement are, on one hand, the European Communities and jointly all

of their Member States, and on the other hand, the European Free Trade Association (EFTA)countries9. The latter consist of Iceland, Norway, Liechtenstein and Switzerland10 (originally,on the part of EFTA, Austria, Finland and Sweden also took part in the Agreement, but later,


28/80


- 28 -

those countries became full Member States of the European Union). In total, the EuropeanEconomic Space includes 28 countries with a population of over 500 million people.

The EEAAgreement has allowed extending the Common Market to the European stateswhich are formally not part of European Communities or EU members, including the legis-lation of the EU concerning free movement of goods, persons, services and capitals and rel-

evant adjacent subjects11

.According to the Medium-Term Strategy for the Development of the Relations with theEuropean Union (until 2010); Russia is not going to join the European Union or to create anassociation with the European Communities. However, provisions of the EEA Agreementcould be useful for the development of a legal mechanism of supporting the CommonEuropean Economic Space alongside with the enforcement mechanism of the 1994Partnership and Cooperation Agreement, in particular its Article 55, and thus to influence thedevelopment of conceptual foundations of the Common European Law Space.

In view of developing the concept of the Common European Law Space, provisions ofthe EEA Agreement outlining the principles of legal integration, decision-making mecha-nism and the one for maintaining the homogeneity of the application of the Agreement arethe most important and interesting ones.

Article 7 of the EEA Agreement establishes the principle and rules of legal integrationwithin the framework of the EEA:

1. Acts referred to or contained in the Annexes to this Agreement or in decisions of theEEA Joint Committee shall be binding upon the Contracting Parties and be, or be made, partof their internal legal order;

2. An act corresponding to an EEC regulation shall as such be made part of the internallegal order of the Contracting Parties;

3. An act corresponding to an EEC directive shall leave to the authorities of theContracting Parties the choice of form and method of implementation.

Article 6 supplements these rules with a principle of uniformity of interpretation andapplication by the Parties of Agreements provisions. This means, for the future developmentof case law, that the provisions of the Agreement, in so far as they are identical in substanceto corresponding rules of the Treaty establishing the European Community and to acts adopt-ed in its application, shall, in their implementation and application, be interpreted in confor-mity with the relevant rulings of the Court of Justice of the European Communities given

prior to the date of signature of the Agreement.The decision-making mechanism in pursuance of the EEA Agreement is founded on

these principles and designed so as to ensure consideration of all stakeholders interests. That

mechanism is outlined in Articles 97-104 of the Agreement. In fact, it represents a supple-ment to legislative procedures of the Community.

When developing the decisions of the European Commission in a specific sphere cov-ered by an EEA Agreement, the Commission should ensure participation in that process ofexperts from the EFTA Member States.

When sending the bill to the EU Council, the European Commission officially submitsits copies to the EFTA Member States. Each of the parties can initiate its discussion in EEAJoint Committee. When a draft law is discussed by the EU Council, the parties can also ini-tiate its discussion also by the EEA Joint Committee. After reaching a decision, the EUCouncil, the text goes to the EEA Joint Committee which changes corresponding Protocols

to the Agreement establishing rules or listing the acts subject to implementation by the EFTAMember States according to Article 7 of the EEA Agreement (a kind of approval of the actadopted by the Council of the European Union).


29/80


- 29 -

A separate procedure applies if the decision of the EU Council can be transformed intothe legislation body of the EFTA country only after the fulfilment of certain constitutionalrequirements (Article 103).

Of undeniable interest are also the procedures for maintaining the homogeneity of the

Agreements provisions, supervision and endowment with binding force and dispute resolution.

Similar mechanisms could be taken into account for the development of a special agree-ment on the application of PCAArticle 55, development and signing of which could be oneof key tasks of the Common European Law Space.

The EEA Agreement institutionalises a specific organisational structure of the EEAwhich comprises the EEA Council, EEA Joint Committee, EEA Joint ParliamentaryCommittee and EEA Consultative Committee. Also on the basis of the provisions of the EEAAgreement, a specific judicial tribunal, the EFTA Court, was established, which wasendowed alongside with the European Court of Justice with the powers for resolution of dis-

putes arising within the framework of the European Economic Area.It is also worth mentioning that except for presence of a specific judicial tribunal, the

EEA structure is extremely similar to the structure of joint EU and Russian bodies estab-

lished by the PCA. For implementation of its provisions, the 1994 Partnership andCooperation Agreement provides for the creation of special structures: Cooperation Council,Cooperation Committee and Parliamentary Cooperation Committee.

Below we will try to briefly compare those bodies.

6. Comparative analysis of the EEA and PCA institutionalmechanisms

EEA. The EEA Council consists of the members of the Council of the EuropeanCommunities and members of the EC Commission, and of one member of the Governmentof each of the EFTA States. It is, in particular, responsible for giving political impetus in theimplementation of the EEAAgreement and makes the decisions leading to amendment of theAgreement.

The EEA Joint Committee consists of the representatives of contracting parties. Thisbody provides for effective implementation of the Agreement and consultations between theparties during the EEA validity period.

The EEA Joint Parliamentary Committee is composed of equal numbers of, on one hand,those of the European Parliament and, on the other hand, members of the Parliaments of the

EFTA States. It examines the reports of the EEA Joint Committee, on the functioning and thedevelopment of the EEA in the form of debate.

The EEA Consultative Committee is composed of equal numbers of, on one hand, thoseof the Economic and Social Committee of the Community and, on the other hand, membersof the EFTA Consultative Committee. This body possesses the advisory authority in the deci-sion-making in the framework of the EEA.

PCA. The Cooperation Councilmeets on the ministerial level. It consists of the mem-bers of the Government of the Russian Federation and the members of the Council of theEuropean Union and the EC Commission; it meets once a year and whenever the circum-stances require. It examines any major issues arising within the framework of the PCA and

any other issues of mutual interest to the parties; it also makes appropriate recommendations,examines the disputes between the parties arising on the issues of application and interpre-tation of the PCA. The Cooperation Council independently determines its rules of procedure.


30/80


- 30 -

Presidency in Cooperation Council is held alternately by representatives of Russia and theEuropean Union.

Cooperation Council can make decisions on the creation of any other special body forassistance in its activities.

The Cooperation Committee meets on the ministerial level; it is composed of the mem-

bers of the RF Government, Council of the European Union and Commission of theEuropean Communities. The Cooperation Committee assists the Cooperation Council in theperformance of its duties, also by preparing its meetings. It performs all the duties as pro-vided for in the PCA and Cooperation Council rules of procedure. The Cooperation Councilmay also delegate any of its powers to the Cooperation Committee .

The Parliamentary Cooperation Committee consists of the members of the FederalAssembly of the Russian Federation and members of the European parliament. TheCommittee determines its own rules of procedure and intervals of sessions independently.The Parliamentary Cooperation Committee can request the necessary information on theapplication of the PCA from the Cooperation Council; it is informed on recommendations ofthe Cooperation Council and can make recommendations to Cooperation Council.

Accordingly, when the mechanism of legislative harmonisation is createdin the frame-work of the application of Article 55 or establishment of the Common European EconomicSpace, it would be appropriate to endow the PCA bodies with the powers similar to the onesenjoyed by EEA bodies. The functions of EFTA Court could be in an abridged form com-missioned to the RF Supreme Court and the RF Supreme Court of Arbitration. Eventually,for the European Court of Justice it would be possible to envisage an additional jurisdictionon interpretation and resolution of disputes connected with the Common EuropeanEconomic Space.

In any case, in the very mechanism of legislative harmonisation, a space should beallocated for participation of the supreme courts of the Russian Federation.

7. The phenomenon of dual obligation and the roleof other regional unions in harmonisationof the legislation

As it was already mentioned, in the framework of the European Economic Area the leg-islation of Norway, Iceland and Liechtenstein is being harmonised by them with the legisla-tion of the EU.

It would be worth emphasising especially that concerning Norway and Iceland in manycases the dual obligation of legislative harmonisation applies. The reason for that is thatthose countries already from the middle of XX century have been harmonising their own leg-islations with other Scandinavian countries within the framework of the so-called NordicCooperation, the Agreement about which had been signed in Helsinki in 1962. The speci-fied contract contains a whole section devoted to legislative harmonisation of theScandinavian countries. We are quoting it below.

Legal Cooperation

Article 2In the drafting of laws and regulations in any of the Nordic countries, citizens of all theother Nordic countries shall be treated equally with the citizens of the aforementioned


31/80


- 31 -

country. This shall apply within all those areas falling within the jurisdiction of theTreaty of Cooperation.Exceptions to the first paragraph may, however, be made if a requirement of citizenship

is constitutionally stipulated, or is necessary because of other international obligations or isotherwise deemed necessary for particular reasons.

Article 3

The High Contracting Parties shall endeavour to facilitate the acquisition by citizens ofone Nordic country to citizenship of another Nordic country.

Article 4

The High Contracting Parties shall continue their cooperation in the field of law with theaim of attaining the greatest possible uniformity in the field of private law.

Article 5

The High Contracting Parties should seek to establish uniform rules relating to criminal

offences and the penalties for such offences.With regard to criminal offences committed in one of the Nordic countries, it shall, asfar as circumstances allow, be possible to investigate and prosecute the offence in anoth-er Nordic country.

Article 6

The High Contracting Parties shall seek to achieve a coordination of legislation in suchareas, other than the aforementioned, as are considered appropriate.

Other Scandinavian countries, Denmark, Sweden and Finland, are members of the

European Union. Consequently, while harmonising their legislation within the framework ofNordic Cooperation, Norway and Iceland, indirectly to some extent adopt the model rulesdeveloped by the EU. This process exists alongside with EEA obligations.

In spite of the fact that in the process of absorption by the European Union of newEuropean countries and digestion of them, the number of the regional unions in Europewill be and should be reduced, the obligations accepted in the framework of such unionsdo not and will not conflict with the system of the Union, but only strengthen its foundationsand facilitate the accession of those new countries to the Union.

The example of the Nordic Cooperation is rather indicative in this respect. The samerelates to the obligations of partner countries across the CIS, Eurasian Economic Communityand to the Union State. Integration within the framework of those Eastern European structuresdoes not contradict nor conflict, but only pushes ahead and encourages partner countries tointegration with the European Union and in many respects accelerates such interaction.

8. The harmonisation mechanism of the legislation inother European PCA partner states

Finally, the fifth group of mechanisms is composed of harmonisation mechanisms existing

in the European partner countries, Ukraine and Moldova.The Ukrainian mechanism is the most interesting one. The respective process inMoldova at first developed vigorously, but has been suspended for some time around the end


32/80


- 32 -

of 2001. However, the experience of Ukraine in terms of preparing the mechanism of leg-islative approximation should be rather usef

Documents

Tendintele Relatiilor Ruso-europene