Jump to the Slovenian reaction
STA, 11 December 2019 – The ECJ Advocate General Priit Pikamäe has stated that the EU Court of Justice is not competent to rule Slovenia's case against Croatia over its failure to implement the border arbitration award, having assessed that the case is an international border dispute outside the scope of EU law and thus outside the court's jurisdiction.
"The infringements of EU law of which Slovenia accuses Croatia are ancillary to the issue of determining the boundary between those two states, which is a matter of public international law," the advocate general stated in his opinion, released by the court on Wednesday.
The opinion is not binding on the court. Available statistics show that the court's Grand Chamber, which is deliberating on Slovenia's case, agrees with the advocate general's opinion in about half of the cases.
In its case Slovenia argues that Croatia infringes several articles of EU law by refusing to implement the award as declared by the mutually appointed arbitration tribunal in June 2017.
Slovenia alleges Croatia's infringements of the principles of the rule of law and sincere cooperation, regulation on the Common Fisheries Policy, Schengen rules governing the movement of persons across borders and the directive establishing a framework for maritime spatial planning.
Slovenia has been insisting that its legal action against Croatia is not about the border dispute, which has been resolved through the arbitration award, which is final.
In his opinion, Pikamäe notes that the purpose of an action for failure to fulfil obligations under Article 259 of Treaty on the Functioning of the EU is to obtain a declaration that the conduct of a member state is in breach of EU law and to terminate that conduct.
The advocate general notes that the situations in which the EU is bound by international law are well-established; "it is bound by international conventions concluded by the EU pursuant to the provisions of the Treaties, by international conventions where the EU assumes powers previously exercised by the member states, and by rules of customary international law when the EU exercises its powers".
"International conventions that do not fall within those categories are not acts of the EU and do not bind it," the advocate general finds.
Relying on the court's case law, he points out that "the territorial scope of the Treaties is an objective fact predetermined by the member states which the EU has to accept".
Consequently, he is of the opinion that "delimitation of national territory does not fall within the sphere of competence of the EU or, therefore, of the Court of Justice".
As regards the relationship between, on the one hand, the arbitration agreement and the arbitration award and, on the other hand, EU law, the advocate general says that it does not fall within any of the situations in which the EU is bound by international law.
Concerning the alleged infringement of the value of the rule of law and of the principle of sincere cooperation, he finds that those "are merely ancillary to the issue of delimitation of the land and maritime boundaries between the two member states concerned and that, accordingly, the Court does not have jurisdiction to hear and determine those complaints".
Citing case law, the advocate says that the principle of sincere cooperation has constituted an independent basis for obligations in cases where the EU was party to a mixed agreement or where the obligations being fulfilled arose under the EU Treaties. "However, the conduct at issue does not fall within either of those two situations."
Regarding the alleged failure to fulfil obligations related to the common fisheries policy, border control and maritime spatial planning, Pikamäe says that "Slovenia is relying on the premiss that the boundary has been determined by the arbitration award.
"However (...) the award has not been implemented in the relations between the two member states concerned," so the advocate general "is of the opinion that, from an EU law perspective, the boundary between those two member states has not been established".
Hence, Pikamäe infers that "Slovenia is seeking, by implication, to have the arbitration award implemented, which falls outside the EU's sphere of competence".
His conclusion is that "the alleged infringements of EU law are ancillary to the issue of determining the boundary between Croatia and Slovenia. Determining that boundary is, by its very nature, a matter of public international law in respect of which the Court does not have jurisdiction."
In releasing the advocate general's opinion, the court made a point of noting that the opinion is not binding on the Court of Justice.
"It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible."
Now the court's judges will start deliberations on the admissibility of the case. "Judgement will be given at a later date," the release said. Unofficially, it is expected in the first quarter of 2020.
If the court finds the case outside its jurisdiction, the case is closed. However, if it finds the case admissible or partly admissible, another hearing will follow, followed by another opinion of the advocate general and another judgement.
Slovenia rejects Advocate General's opinion
STA, 11 December 2019 - Slovenia did not expect the EU Court of Justice (EJC) advocate general would deem the country's lawsuit against Croatia over EU law violation inadmissible. Foreign Minister Miro Cerar believes the advocate general's reasoning is weak, indicating that the court's decision might be different.
President Borut Pahor said the opinion of the advocate general does not change the fact the border between Slovenia and Croatia had been drawn by a Hague-based international arbitration tribunal.
Meanwhile, Prime Minister Marjan Šarec said that Slovenia remained determined to implement the arbitration decision and that bilateral talks or returning to square one was out of the question.
The Foreign Ministry stressed in a release that Advocate General Priit Pikamäe's position was not binding on the court, noting the procedure at the ECJ would not affect the fact the border arbitration decision from 2017 was valid and binding for Slovenia and Croatia.
Cerar, who called a news conference to comment on the opinion, said the court had so far decided in only five cases brought against a fellow member state and that the court followed the advocate's position in only three of the cases.
He added that the decision had "absolutely no effect on the validity of the arbitration award" and that arguments were on Slovenia's side.
Cerar also highlighted the fact that nobody had ever said Croatia did not have to implement the arbitration award, while many countries had urged it to do so.
When asked whether Slovenia had plan B if the court decided the case was inadmissible, Cerar said plan B was not needed because "there is plan A, which is completely clear: Croatia must implement the arbitration award".
The lawsuit brought against Croatia is in no direct relation to the border arbitration as such, but discusses violations of EU law committed by Croatia, the ministry said in a release.
Slovenia has taken measures and adopted legislation to implement the border arbitration decision, while Croatia is yet to fulfil this obligation, it added.
Pahor and Šarec commented on the matter following a tradition December meeting of the president, the prime minister, the presidents of both chambers of president.
Pahor stressed Slovenia would insist on setting up a Slovenian-Croatian demarcation commission which will set the land border, as envisaged in the arbitrtaion award.
Šarec explained Slovenia had called on Croatia to appoint its members to the commission four times now, but Croatia had failed to respond.
Slovenia's agent Maja Menard meanwhile believes Pikamäe ignored Slovenia's claim and was deciding as if Slovenia had expected the EU court to define the border. On the basis of Croatia's refusal to implement the arbitration award, he also argued the border had not been drawn.
Menard is however reserved in any further comments, saying she must read the full opinion first. This was also echoed by Marko Vrevc of the Foreign Ministry, who said that the advocate general's position was not what Slovenia had expected.
"Slovenia is not taking Croatia to court because the course of the border was unclear but because it realised Croatia was hindering Slovenia from following EU law," Vrevc said, expressing belief that the Luxembourg-based court would decide differently than Pikamäe.
The opposition New Slovenia (NSi) regretted the advocate's position and hopes the ECJ will decide differently. A decision by a panel of judges is expected in a few months' time.
On the other hand, head of the National Party (SNS) Zmago Jelinčič said Slovenia displayed a poor understanding of international law.
Democrats (SDS) head Janez Janša tweeted the Slovenian government had known the outcome in advance and that Cerar, who was prime minister when Slovenia decided to sue Croatia, should cover the expenses from his own pocket.
When asked whether Cerar should be held responsible if thecourt follows the advocate's position, Šarec said the decision to take Croatia to court was a political one, taken after consultations of parliamentary party leaders.
Speaker Dejan Židan was very happy that the prime minister, the president, the upper chamber president and himself displayed complete unity in the face of today's development.
Alojz Kovšca, the National Council president, meanwhile, warned the border dispute between Slovenia and Croatia was a bad signal for other nations with unresolved border issues in the Balkans.
On the other hand, the opposition Left believes Slovenia should take a different approach instead of taking Croatia to court. MP Matej Vatovec reiterated the party's position the lawsuit was barely legitimate.
The coalition Alenka Bratušek Party (SAB) said Slovenia must persist in getting Croatia to implement the arbitration award even if the court decided the lawsuit was indeed inadmissible.
The SAB, as well as the coalition Social Democrats (SD) underlined the advocate general's position had no bearing on the validity of the arbitration award, which remains a binding element of international law.
All our stories on the border dispute can be found here
