The Court of the Eurasian Economic Union: commentary on the Advisory Opinion of November 22, 2022 in case No. CE-2-2/1-22 on methods of providing guarantees in public procurement

The Eurasian Economic Union Court issued an advisory opinion in November, 2022, on an application from the Eurasian Economic Commission for clarification of certain provisions of para. 18 of the Protocol on the Procedure for Regulating Procurement, which is Annex 25 to the Eurasian Economic Union Treaty. The question put forward by the applicant was whether Member States had an obligation to implement in their national legislation the types of tender security listed in these para. 18 provisions: a bank guarantee and a monetary contribution guarantee. The reason for the application was the absence of a unified position among Member States on this issue. An analysis of the domestic legislation of Member States showed that a bank guarantee was accepted in every one of them but this was not the case as to a monetary contribution guarantee. The Court in its advisory opinion came to the conclusion that where national legislation does not provide for one of the types of security provided by EAEU law, the corresponding legislation has to be brought into line with the law of the integration organization. Despite the specialized character of the advisory opinion’s subject-matter, its significance for case law lies in the methods of interpretation and types of legal argumentation used by the Court. The Court had recourse to literal, grammatical, and teleological interpretation, using the arguments of effet utile and a contrario. In the framework of the teleological interpretation one can follow the set of goals the Court took into account: the universal goal of integration; its realization in the development of national economies and in the increase of their competitiveness; the creation of a common market; and the goal of creating a separate regulatory field, which in this case was public procurement. The author argues that the EAEU Court’s case-law demonstrates the evolution of interpretation methods and the types of legal argumentation used by the Court. She formulates the opinion that the logic of interpretation and legal argumentation used in this advisory opinion can serve as a model for future judicial ruling.

About the author: Ekaterina Diyachenko – Canditate of Sciences (Ph.D.) in Law, Counsellor to a Judge of the Eurasian Economic Union Court, Minsk, Belarus; Senior Researcher of the International Law Sector of the Institute of State and Law, Russian Academy of Sciences, Moscow, Russia.

Citation: Diyachenko E. (2023) Sud Evraziyskogo ekonomicheskogo soyuza: kommentariy k konsul’tativnomu zaklyucheniyu ot 22 noyabrya 2022 goda po delu № SE-2-2/1-22 o sposobakh obespecheniya v gosudarstvennykh zakupkakh [Court of the Eurasian Economic Union: commentary on the Advisory Opinion of November 22, 2022 in case No. CE-2-2/1-22 on methods of providing guarantees in public procurement]. Mezhdunarodnoe pravosudie, vol. 13, no. 1, pp. 21–28. (In Russian).

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