Constantin Stefanou - A Legal and Political Interpretation of Articles 224 and 225 of the Treaty of Rome

After almost forty years from the signing of the Treaty of Rome, it is rare that the opportunity arises for the interpretation of an original Article of the Treaty. Articles 224 and 225 of the Treaty are two provisions which have not been subject to an authentic interpretation by the European Court of Justice (ECJ).

Authentic interpretations of Treaty Articles by the ECJ are always celebrated events for observers of the EU. At a basic level they define or clarify the rules of the Union and create strong precedents which influence national legislation. At a wider level, given the right Treaty Article to be interpreted, they can serve as benchmarks of the EUs progress towards further integration. The Greek unilateral measures (embargo) against the Former Yugoslav Republic of Macedonia (FYROM), the invocation of Article 224 to justify the embargo and the Commissions subsequent use of Article 225, referring Greece to the ECJ, had the hallmarks of an impending authentic interpretation of these Treaty Articles. In fact, the Commissions application to the ECJ for interim measures (in addition to the main case), requiring Greece to lift the embargo immediately, when Greece was claiming threat of war, seemed to land the ECJ with two cases which could result in an activist ruling which could enable the ECJ to involve itself with the most sensitive areas of national policy making, namely foreign policy, national security and/or defence.

Eventually the ECJ did not take an activist line in the case for interim measures and the Commission withdrew its application in the main case, after which the ECJ removed the main case off the Courts register. However, as this was the first ever case where a member state based its defence solely on Article 224, on an occasion when its use did not appear to be outright flippant, the wider issues of the case and indeed these two Treaty Articles themselves merit a closer examination.

will refer to all of those, irrespective of their qualitative and quantitative contribution to the interpretation of the two Articles, with the exception of two cases.

The two cases left out of will present a brief background of the dispute between the two countries, to enable the reader to follow the presentation of the cases themselves and the arguments of both the ECJ officials and the litigants in the cases, namely the Commission and Greece. Case C-120/94R referred to the Commissions application to the ECJ for interim measures against Greece, amounting to the immediate lifting of the embargo against FYROM, on the basis that the imposition of the embargo hindered Community trade and distorted competition within the EU. This application was rejected by the ECJ. Case C-120/94 referred to the Commissions application to the Court to declare the imposition of the Greek embargo against FYROM unlawful on the basis that it hindered Community trade and distorted competition.

What is of particular importance for this book is that the Commission chose to bring Greece before the ECJ on the basis of Article 225, something that has never occurred in any other case, in the history of the ECJ. Essentially, the Commission argued that Greece, which acknowledged that the Greek embargo did clash with the Treaty provisions on the free movement of goods within the EU but justified this violation of EC law on the basis of the safeguard clause of Article 224, misused this latter provision. However, Greece insisted that the embargo was indeed legally justified on the grounds that certain Articles of FYROMs Constitution coupled with the use of names and symbols which were part of Greeces heritage, constituted a threat to the Greek culture, history and, ultimately, territorial integrity. Thus, according to Greece the embargo was an attempt to stop the situation from escalating to war. Despite the fact that the proceedings before the ECJ on this case were completed, before the publication of the final judgement, Greece entered into a bilateral agreement with FYROM and lifted the embargo. Consequently, the Commission withdrew its referral and the ECJ did not issue a final judgement on the case. However, in view of the fact that the