Elena Sokolovskaya,

Chief Expert of Competition and Law journal

In 2025, the Court of the Eurasian Economic Union (the ‘EAEU Court’) celebrates its tenth anniversary. Over this period, it has proved its authority and demonstrated its contribution and importance by ensuring legal certainty and consistency in how the Union law is interpreted and applied. As evidenced by an analysis of its practice, one of the main area that the Court prioritises in its activity lies in adjudicating disputes and issuing advisory opinions in the sphere of antitrust regulation. We will examine two pivotal legal positions.

What to pay attention to
Under Chapter IV of the Statute (Annex 2 to the Treaty on the Eurasian Economic Union dated of 29 May 2014 (the ‘EAEU Treaty’)), the EAEU Court has the jurisdiction to resolve limited categories of disputes initiated by member states of the Union or business entities and to clarify the law of the Union.

Categories of disputes
The EAEU Court may settle disputes further to an application from:
— a member state of the Union: for example, to challenge actions or omissions of the Eurasian Economic Commission (EEC) or whether an international agreement (or particular provisions of it) which was concluded within the Union is in line with the EAEU Treaty;
— a business entity: for example, whether a decision of the EEC (or particular provisions of it) that directly affect(s) the business entity’s rights and legitimate interests in business or other economic areas is in line with the EAEU Treaty and/or international agreements that have been concluded within the framework of the Union.

On the right to legal protection in court

The EAEU Court has the authority to clarify the law of the Union. This refers to provisions of the EAEU Treaty and international agreements concluded within the framework of the Union, as well as decisions of competent authorities of the Union. Under clause 47 of the Statute, such clarifications being issued means that an advisory opinion is given.

The opinion is of an exclusively advisory nature (clause 98 of the Statute). In our opinion, however, this fact only enhances the interest of the Union member states and the EEC in the advisory process. As a result, applicants are provided with a non-binding recommendation as to how a rule of law should be interpreted, rather than a rigid and binding mandate.

From the perspective of protecting competition, on 12 February 2025 the EAEU Court’s Grand Chamber issued the landmark advisory opinion of recent years, which clarified provisions of the EAEU Treaty.

The opinion was provided in reply to the request of the Eurasian Economic Commission that applied to the EAEU Court. The reason for the request was legal uncertainty over whether regulations of the Commission could be challenged and, specifically, whether the Court could review an application from a private individual whom the Commission held liable for breaching cross-border general competition rules.

The Court was categorical in stating that its jurisdiction extends to adjudicating disputes that were initiated only further to applications from individuals who are registered as individual entrepreneurs and does not extend to other private individuals.

Such clarification triggered a swift response. Within a month, a draft Protocol to amend the EAEU Treaty was published on the portal where EAEU’s draft regulations are published. It is presumed that the amendments will provide individuals (including a company’s officers) and not-for-profit organisations with the opportunity to challenge decisions and acts or omissions of the EEC in court.

Consequently, although the EAEU Court’s advisory opinions are non-binding in nature, their importance should not be underestimated.

On procedural requirements

When it considers cases that involve challenging the EEC’s decisions, the Court will check the following: (i) the Commission's authority to adopt the decision that is being challenged; (ii) whether the rights and legitimate interests of business entities that are granted by the EAEU Treaty (or relevant international agreements) within the Union have been violated; and (iii) whether the decision (or particular provisions of it) or the Commission's act/omission that is being challenged is in line with the EAEU Treaty (international agreements) within the Union (clause 45 of the EAEU Court’s Rules, as approved by Decision No. 101 of the Supreme Eurasian Economic Council dated 23 December 2014).

A ground for a Commission’s decision (or provisions of it) to be recognised as not complying with the EAEU Treaty and/or international agreements within the Union may only be an infringement of those rights and legitimate interests that are expressly conferred by the EAEU Treaty itself and such international agreements (clause 7.2.10 of the EAEU Court‘s Decision dated 7 April 2016 in the case of Sevlad LLC v. The EEC).

Although the EAEU Court’s advisory opinions are non-binding in nature, their importance should not be underestimated

We should note that the exercise by the Commission of its powers to prevent a violation of general competition rules on cross-border markets is limited by the mandate to observe the procedural requirements that are stipulated by the EAEU law and that serve as fundamental safeguards for the rights and legitimate interests of inspected parties. Furthermore, any failure to respect the right of defence or the right to be aware of the essence of the infringement that is being imputed constitutes a violation of the law of the Union in general and of the EAEU Treaty in particular.

The EAEU Court arrived at similar conclusions in a case when it was checking whether the EEC’s Decision No. 61 dated 15 March 2023 was lawful. The Commission claimed that the respondents’ actions constituted a violation of article 76(5) of the EAEU Treaty, which deals with other agreements being concluded between business entities (market players), if such agreements lead to or may lead to restricting competition. Originally, the case was initiated based on the ground of an alleged breach of article 76(3)(3) of the EAEU Treaty, which deals with agreements being concluded between competing business entities that operate on the same commodity market where such agreements lead or may lead to such commodity market being shared based on geographic factors.

Certainly, during the proceedings, signs of another offence might be identified in the actions of a defendant which differ from the offence based on which the case was originally initiated. In that event, however, the Commission is obliged to adjourn the proceedings (clause 28 of Guidelines No. 99 on how cases should be adjudicated that involve a breach of the general rules of competition on cross-border markets, as adopted by the EEC Council’s Decision No. 99 dated 23 November 2012). Furthermore, if new elements have been identified of the general rules of competition being violated on cross-border markets that are sufficient for the case to be separated out into separate proceedings, a ruling will have to be issued to that effect (clause 36(1) of Guidelines No. 99). Nevertheless, the case was not adjourned and nor was the question discussed of whether the case should be separated out based on the signs of article 76(5) of the EAEU Treaty being violated.

The EAEU Court serves as a type of a guarantor, ensuring that the Union’s law is applied consistently

The Court’s position was that the Commission actually deprived the defendants of the opportunity to ensure that their rights were properly protected and to provide arguments and evidence to refute that they had violated article 76(5) of the EAEU Treaty. This evidences that the defendants’ right to an effective remedy was violated and that the Commission had defied the principle of objectivity, considering that the facts of the case had not been fully and comprehensively examined.

Let us draw a parallel with the activity of the Russian Federal Antimonopoly Service. Similar requirements that the case must be fully, comprehensively and objectively examined are imposed on the Russian antitrust regulator, ensuring that all parties to proceedings are given an equal opportunity to protect their rights and legitimate interests. Speaking of which, at the national level, the procedural aspects of a case being separated out into separate proceedings do not, on the whole, differ from those set out in Guidelines No. 99 (clauses 1.8 and 3.128 of the Federal Antimonopoly Service’s Order No. 339 “On approving the administrative regulation of the Federal Antimonopoly Service to perform the state function of initiating and examining cases concerning the violation of the antimonopoly legislation of the Russian Federation” dated 25 May 2012). Consequently, it is difficult to disagree with the EAEU Court’s findings.

This leads us to conclude that the EAEU Court serves as a type of a guarantor, ensuring the Union’s law is applied consistently. Owing to its input, clear and easy-to-understand guidelines for business entities and regulatory bodies are formulated and fundamental legal doctrines are developed.