Case C_265_03_Igor Simutenkov_CMLR_2008

ing of the provision is remarkable given the uncertainty surrounding the very phraseology of Article 23(1) PCA, stemming from the inconsistent language versions of the provision. It is all the more striking that in contrast to Advocate General Stix-Hackl, the Court is totally silent on that linguistic issue. As recalled above, it simply contends that the PCA rule of equal treatment lays down a precise obligation as to the results,33 without referring to the analysis of the Advocate General, or indeed to any other ground which could substantiate this straightforward contention. This silence is also astonishing given that the Spanish version of the provision, that is the version invoked by Mr Simutenkov before the Spanish courts against the RFEF and which is included in extenso in paragraph 3 of the Spanish version of the Court’s ruling, clearly does not set out an obligation of result.34

The Court’s answer to the Spanish court is thus not as helpful as it could have been, had it included some explanation notably to justify that two provisions drafted similarly (i.e. Art. 23(1) of the PCA with Russia, and Art. 24(1) of the PCA with Ukraine) should be understood differently. By not dealing with that linguistic question, arguably to cover up disagreement among judges as to the method to establish that obligation of result, the Court undermines its finding that the provision has direct effect given that, as argued earlier, its conclusion is based essentially on a textual argument. It is also a missed opportunity for the Court further to articulate how linguistic divergence of Community texts should be tackled, divergence which given the sheer increase of EU official languages is bound to recur. In particular, it would have been useful for the Court to indicate whether the language in which the original agreement was drafted should prevail as proposed by the Advocate General, and indeed by the Permanent Court of International Justice.35 It would have been equally useful to know what authority the Court attributes to the “intention of the parties”, which the Advocate General regarded as of “decisive importance”.36

Be that as it may, the trend whereby direct effect of provisions of association, cooperation and now partnership agreements is the rule rather than the exception in the Court’s case law appears sufficiently well-established for

33.Para 23.

34.The Spanish version of Art. 23(1) includes the following phrase: “la Comunidad y sus Estados miembros velarán por que el trato que se conceda a los nacionales rusos, legalmente empleados en el territorio de un Estado miembro, no implique ninguna discriminación…” (my emphasis). This is the same formulation as the provision of the PCA with Ukraine (Art. 24), which the A.G. regards as laying down an obligation of conduct!

35.Judgment of 30 Aug. 1924 in The Mavrommatis Palestine Concessions; Judgment No. 2 (PCIJ, Ser. A., No. 2, 1924).

36.Para 22.

the present context, this formula could almost be read as a reminder that the acknowledgement of direct effect of a provision of EC law belongs to the Court of Justice’s tasks, and not to those of the national courts.

Incidentally, it may appear slightly paradoxical that the Court should refer to its WTO case law in the Simutenkov context, for the Court’s approach and conclusion therein could not be more at odds with that case law. Here, the Court extends the operation of direct effect to provisions of the PCA essentially on the basis of a textual analysis, thereby suggesting that direct effect may operate in the context of all types of EC bilateral agreements. This permissive line of case law stands in sharp contrast to the restrictive WTO jurisprudence, whereby the Court has consistently denied the direct effect and invocability of provisions of the WTO agreement, given the latter’s purpose and nature.42 Moreover, the Court has generally looked fi rst at the purpose and nature of the GATT/WTO agreement before engaging in any textual analysis.43 Thus, the direct effect test does not operate in a similar fashion, at least not in the same order, when it concerns an agreement like the WTO44 as when it relates to partnership, association or cooperation agreements.45 The Court clearly enjoys a fair amount of discretion in interpreting the objectives of an external agreement, but also in determining the extent to which (its reading of)

42.The Court has considered that “having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions”: e.g. Case C-149/96, Portugal v. Council, [1999] ECR I-8395; Case C-93/02 P, Biret International v. Council, [2003] ECR I-10497; Case C-377/02, Van Parys, [2005] ECR I-1465; Case C-351/04, Ikea Wholesale Ltd, judgment of 27 Sept. 2007, nyr; see also Opinion of A.G. Poiares Maduro of 20 Feb. 2007 in Joined Cases C-120 & 121/06 P, FIAMM.

43.This order is also followed in the context of other multilateral agreements such as UNCLOS; see in this respect, the Opinion of A.G. Kokott of 20 Nov. 2007 in Case C-308/06, The International Association of Independent Tanker Owners and Others; paras. 54–59.

44.In its initial International Fruit ruling, the Court approached the direct effect test differently. For the purpose of examining whether the provisions of the General Agreement confer rights on citizens on which they can rely before courts, e.g. for contesting the validity of a Community measure, the Court has systematically started with a consideration of its “spirit, the general scheme and the terms of the Agreement”. In other words, rather than starting the direct effect analysis by examining the wording of the provision, the Court begins with an analysis of the purpose of the agreement, looking at its preamble and its general nature. In International Fruit in particular, it did not even look at the wording of the GATT provision invoked, viz. Art. IX GATT, considering that in the light of its analysis of the spirit, the general scheme and the terms of the agreements that: “those factors are sufficient to show that, when examined in such context, Article IX [GATT] is not capable of conferring on citizens of the Community rights which they can invoke before the courts”. Joined Cases 21–24/72, International Fruit Company, [1972] ECR 1219, para 27.

45.As illustrated in Kupferberg, the Court has at times looked first at the nature and structure of bilateral trade agreements; Case 104/81, Kupferberg, [1982] ECR 3641.

Moreover, since the scope of application of the equal treatment principle as regards working conditions is prima facie the same as the one applicable in the EC context, one may submit that the provisions of Article 23(1) PCA could be invoked not only against sport federations as in the present case, or against Member States (as per Pokrzeptowicz-Meyer), but also against other types of employers, on the basis of an application by analogy of the Angonese case law.50

By relying on the “ordinary meaning of [the] words”, the Court confirms the progressive vanishing of the old Polydor jurisprudence according to which “a mere similarity in the wording of a provision of one of the Treaties establishing the Communities and of an international agreement between the Community and a non-member country is not sufficient to give to the wording of that agreement the same meaning as it has in the Treaties”.51 Instead, “the extension of the interpretation of a provision in the Treaty to a comparably, similarly or even identically worded provision of an agreement concluded by the Community with a non-member country depends, inter alia, on the aim pursued by each provision in its own particular context. A comparison between the objectives and context of the agreement and those of the Treaty is of considerable importance in that regard”.52

Although the Court had conspicuously referred to and applied that Polydor jurisprudence in its early EA case law,53 later EA related rulings either merely mentioned it in passing without applying it54 or, as in Jany55 or Deutscher Handballbund, did not refer to it at all. In that, Simutenkov may look like the final blow to that jurisprudence.56 If this is true, legal certainty would be improved, for less room is left to adjustment of a provision’s meaning depending on the Court’s understanding of the nature and objective of an agreement where it is included. The Court would thereby mitigate the doubt Advocate

50.Case C-281/98, Angonese, [2000] ECR I-4139; see also Case C-438/05, Viking Line ABP, judgment of 11 Dec. 2007, nyr; Case C-341/05, Laval un Partneri Ltd, judgment of 18 Dec. 2007, nyr.

51.Case 270/80, Polydor and RSO Records, [1982] ECR 329.

52.Case C-312/91, Metalsa, [1993] ECR I-3751.

53.Głoszczuk; Kondova; Barkoci and Malik, all cited supra note 32.

54.Case C-162/00, Pokrzeptowicz-Meyer, [2002] ECR I-1049.

55.See in particular Case C-268/99, Jany and others, [2001] ECR I-8615.

56.At the same time, the Court’s reference to the “ordinary meaning of the words” does not entail that it follows the rule of interpretation set out by the 1969 Vienna Convention on the Law of Treaties, and which provides in its Art. 31(1) that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Indeed, it could be suggested that by paying less attention to the “object and purpose” of the agreement, the Court may be also departing from a full application of the Vienna Convention. In this regard, it is noticeable that in contrast to A.G. StixHackl, it refrains from referring explicitly to Art. 31(1) of the Convention.

Arguably, by not transposing the EC proportionality test to the PCA context,61 the margin of manoeuvre left to the Member States is wider therein than in the EC context, and consequently, the Russian worker’s right to equal treatment is not as strictly safeguarded as in the EC context. The Court’s control over Member States’ measures has been exercised in the EA context, notably in the Panayotova case, 62 which could thus offer some indication as to the ways in which the Court may address the balance under the PCA between Member States powers and the rights of Russian nationals.

Such greater tolerance towards Member States’derogations in the PCA than in the EC framework may be justified by a simple textual reading of the “nullify or impair” clause contained in Article 48 PCA. But, the difference of nature and purpose of the two different legal contexts could also explain, at least partly, the Court’s approach. In particular, the right to equal treatment for workers in the EC Treaty does not have the same function as in the PCA, given the distinct objectives of the two frameworks. In other words, and despite the impression the Court gives when transposing the EC interpretation of equal treatment to the PCA context, the legal framework in which the principle is to be operate still has a substantial influence on its application. If that holds true, it would have perhaps been useful for the Court to provide some reasoning to justify this difference of approach, an explanation which a reference to Polydor could have provided. In any event, it demonstrates that the “ordinary meaning” approach of the Court covers the meaning of equal treatment, but not the possible derogations to the principle, thus mitigating the rights that Russian workers appear to gain here.

Another nuance to the right to equal treatment envisaged by the PCA is that it does not cover access to the labour market. Clearly, the PCA does not aim at increasing movement of labour,63 let alone establishing freedom of movement between the Parties. Indeed, it may be wondered whether the tightening of EC and Member States’migration policies is not going to make the Russian workers to equal treatment as regards working conditions, more and more illusory. For instance, it should be recalled that Russian nationals are required to pro-

on the right itself. It also depends on the objective pursued by the measure and the appropriateness of the measure to attain it. Although the test does not impose a judgment on the proportionality or even the existence of a less restrictive alternative (necessity) of the measure, it still requires an assessment of the appropriateness or adequacy of means and ends” (para 43). See also Hillion, case note on Głoszczuk Kondova, Barkoci and Malik, Jany and Pokrzeptowicz-Meyer, 40 CML Rev. (2003), 465.

61.Cp. Case C-228/91, Commission v. Italy, [1993] ECR I-2701.

62.Case C-327/02, Panayotova and Others, [2004] ECR 11055.

63.For certain Russian nationals, Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents would help surmount this limitation, O.J. 2004, L 16/44.

of the agreements’ provisions.66 In this respect, it is noticeable that the Court’s reading of the PCAobjectives differs from that of theAdvocate General. While the latter considered that the PCA, like the EA pursues the object of “’gradual integration’ of the other Contracting Party thereto”,67 the Court underlines that the PCA is not intended to establish an association with a view to the gradual integration of that non-member country into the EC, but is designed rather to bring about the gradual integration between Russia and a wider area of cooperation in Europe.68 Still, this difference of understanding of the Agreement has no impact whatsoever on the outcome of the respective analysis, as both the Advocate General and the Court come to the same conclusions.

The Simutenkov ruling shows that an agreement like the PCA, which “lags behind” the EA in terms of objectives, includes provisions which can nevertheless be interpreted exactly like the latter’s provisions. In that, the judgment could well nuance the significance of differentiating between association, cooperation or partnership in the EC external action,69 something the negotiators of future agreements, both on the Union and on the third countries side, should bear in mind.70

6.Conclusion

Mr Simutenkov has perhaps left a more lasting mark on EU law than on European football.71 He gave his name to the first ever Court’s ruling on the PCA, allowing the Court of Justice to establish that a Russian football player employed by a Community club has equal rights to be on the pitch as any other Community player. Simutenkov also symbolizes the Court’s active transposi-

66.This is even more remarkable, given that the intention of the parties was otherwise taken into account at least by A.G. Stix-Hackl, who regarded it as “of decisive importance for the interpretation of” the provisions of Art. 23(1).

67.Para 37, A.G. Opinion.

68.Judgment, para 27.

69.By the same token, judicial mitigation of the differentiation could further decrease the value of association agreements in the EC external relations tool-kit, a value which arguably has already been watered down by its increasing – if not excessive – use by the EU and the Member States in EC external action.

70.See in this regard the current discussions on the new agreement between the EU and Ukraine, which because of a disagreement on the title continues to be called a “New Enhanced Agreement”; see further, Hillion, “Mapping-out the new contractual relations between the European Union and its neighbours – Learning from the EU-Ukraine enhanced agreement”, 12 EFA Rev. (2007), 169.

71.He left Europe in 2002 to the US to play for the Kanzas City Wizards, where according to Wikipedia, he became Major League Soccer’s first Russian player. He retired in 2005 and having abandoned the professional career to become a trainer … in Russia.