European Union law and the notions of third country and territorial entity not recognized as an independent state

Abstract

Since 2016, the European Union’s relationship with Kosovo is articulated by a bilateral Stabilization and Association Agreement as part of the pre-accession strategy for the Western Balkans. It does not imply the recognition of Kosovo as a sovereign State by the European Union but reinforces its «nationalization». In September 2020, the challenge of legally legitimizing the European Union’s approximation to Kosovo in such circumstances led the General Court to declare the existence in Union Law of a «flexible concept» that the term country includes territorial entities that are not necessarily States under international law. This statement was rejected in January 2023 by the Court of Justice which, to serve the same purpose, has opted for a conditional assimilation strategy. It does not legally open the concept, of third country, but it admits that a territorial entity situated outside the European Union which the European Union has not recognised as an independent State must be capable of being treated in the same way as a ‘third country’ within the meaning of that provision, while not infringing international law. The relationship of the European Union with Kosovo in these terms accentuates the erosion of the position of the members of the European Union – including Spain – who have rejected the recognition of Kosovo as a State, although they still have room to oppose the designation of Kosovo as a country if it is not justified in the terms established by the Court of Justice.