An Evolution of the EU’s Approach Towards Kosovo: Is the Asterisk Vanishing?
Photo: Prishtina Insight
The EU’s policy of neutrality towards Kosovo based on the 2012 Regional Representation Agreement has been an object of previous analysis. It showed that there is an evident lack of uniformity when it comes to enforcing the asterisk/footnote policy among different EU institutions. In the first analysis, work of the European Parliament (EP) and the European Commission (EC), as well as EC committees and agencies were analysed. In the second analysis, the aim is to explore three additional EU institutions and their stance towards the status of Kosovo: Council of the EU, Court of Justice of the EU, and the European Council.
These three bodies are instrumental for functioning of the EU and their decisions, conclusions and judgements are binding in producing legal effects. Therefore, this analysis will pay attention on documents adopted by these three bodies with regards to the policy towards Kosovo. If you are interested how the European Commission and the European Parliament enforce the official policy of neutrality including the asterisk and footnote, check this analysis.
Sturdy position of the Council of the EU
Council of the EU is one of two main legislative bodies of the Union, the first one being the European Parliament. The Parliament was the first institution to abandon the neutrality policy since 2015. However, the Council’s practice is different.
Starting with the Council’s website, first look on news regarding Kosovo shows that the policy of neutrality is implemented by this institution. The asterisk and footnote are consistently implemented across the Council’s website. Taking a look into a formal Council’s documents, confirms the previous finding. For instance, the last time the General Affairs Council discussed the Enlargement and stabilisation and association process, it referred Kosovo in its conclusions with an asterisk and accompanying footnote. In a same vein, the Foreign Affairs Council in its latest decision to extend mandate of the EU Special Representative in Kosovo strictly sticked with the official EU policy. Lastly, in the long-awaited decision for visa liberalisation for Kosovo citizens, Council again used the asterisk and footnote.
The above presented examples showcase that the Council has so far consistently followed the official policy towards Kosovo. Furthermore, there are no indications that this stance is going to change in the future.
Confusion created by the Court of Justice of the EU
Court of Justice of the EU (CJEU) is the highest judicial body of the EU and its adjudication is legally binding and it creates obligation to all EU institutions and Member States. The CJEU mentioned Kosovo in two of its judgements. In June 2019, Spain filed a lawsuit before the General Court of the European Union for the annulment of this decision to accept Kosovo’s membership in BEREC. This lawsuit was dismissed with the decision of September 23, 2020.
Spain appealed against this judgment in November 2020, leading the Court to the second decision in Spain’s favour. While the content of these two judgements is not in the focus of this analysis, the fact how the Court referred to Kosovo is interesting. In both cases, CJEU referred to Kosovo without an asterisk and footnote. Having in mind that CJEU dropped the asterisk and footnote, it may raise a question whether other EU institutions can do the same referring to the Court’s practice in two cases on Kosovo?
European Council as a potential gamechanger
European Council is certainly the most influential EU bodies composed of the heads of states and governments of EU Member States and are in charge of determining overall direction of the EU. Taking a look on EUCO’s latest June 2023 Conclusions once again paints a picture of strictly conforming with official policy. Closer look in previous conclusions from 2022 and before once again substantiate the firm attitude of EUCO regarding the status of Kosovo.
Despite the fact that the European Council refers Kosovo with the asterisk and footnote, following the 2012 Reginal Representation Agreement, it has the power to change this policy as the most influential institution in the EU. However, this would require a unanimous decision of all 27 heads of states and governments, which at this point is hard to expect on this matter. Nonetheless, in the case of full implementation of the EU Proposal, which is the first agreement between Belgrade and Pristina referring Kosovo without the asterisk and footnote, the European Council may decide to abandon the asterisk. This will depend on Serbia’s diplomatic efforts to enforce implementation of the 2012 agreement.
Not so subtle disappearing of the asterisk/footnote
In the analysis of these three institutions more uniformity was evidenced than in the previous part of the analysis. Namely, the Council of the EU and the European Council firmly follow the neutrality policy based on the Regional Representation Agreement. However, the practice of the CJEU may make a precedent leaving space for the EUCO and the Council to change their approach. This will depend on many factors though. It turns out that the prediction of Edita Tahiri that “asterisk will melt down as like a snowflake” is not easily achievable. Asterisk is not melting down so quickly in fact.