STA, 31 January 2020 - The EU Court of Justice has decided that a lawsuit Slovenia has brought against Croatia over its refusal to implement the 2017 border arbitration award is inadmissible, but it said in a decision issued on Friday that both countries nevertheless had to endeavour to resolve this dispute in accordance with international law.
The decision is not surprising given that in December the court's Advocate General Priit Pikamäe proposed that the suit be ruled inadmissible. While his opinion was not binding on the court, it was seen as a strong indication of the court's course of action.
Slovenia had built its case around the argument that Croatia infringes several articles of EU law by refusing to implement the award of a border arbitration tribunal that both countries had pledged would be binding.
The advocate general however argued that "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 court's Grand Chamber used exactly the same argument in its decision. It said the arbitration tribunal was founded on the basis of international law, whereby "neither the arbitration agreement nor the arbitration award formed an integral part of EU law".
While it is true that the Act of Accession of Croatia to the EU makes a reference to the arbitration award, which Slovenia has interpreted as a strong argument in favour of its position that the court should take on the dispute, the judges did not see that as making the arbitration award a part of EU law.
They said the reference to the arbitration agreement "could not be interpreted as incorporating into EU law the international commitments made by both member states within the framework of the arbitration agreement".
Despite the inadmissibility, the court indicated that both sides needed to respect the arbitration agreement. It said both countries were required by the EU Treaty to "strive sincerely to bring about a definitive legal solution to the dispute consistent with international law, in order to ensure the effective and unhindered application of EU law in the areas concerned".
In order to achieve this, they may use other means of settling their dispute, including a submission to the Court under a special agreement pursuant to Article 273 of the Treaty on the Functioning of the EU, which gives the court jurisdiction in any dispute between member states "if the dispute is submitted to it under a special agreement between the parties"
Slovenia had brought the case under Article 259 of the EU Treaty.
Mojca Menard, Slovenia's agent in the case, described the decision as a "dangerous precedent" that is not in line with the court's case law and potentially paves the way for violations of EU law by member states by invoking "allegedly open international issues".
She said it raised the question of how the court may act in the event of violations of fisheries regulations or the Schengen Code by Slovenia of Croatia in the border area. "Which country will then be considered an infringer by the EU Commission," she wondered.
The court's decision is final and cannot be appealed. Menard said it "changes nothing" with regard to the arbitration award or for the border line that the arbitration award determines.
Slovenia sees EU Court ruling as vindication of its position
STA, 31 January 2020 - While the EU Court of Justice did not admit Slovenia's lawsuit against Croatia over its refusal to implement the award handed down by the border arbitration tribunal, Slovenia feels vindicated. Foreign Minister Miro Cerar said the ruling showed the court saw the border arbitration award as "valid and binding," which was an important goal.
The decision is "not a legal victory for Croatia," which will be "reminded every week that it must respect the arbitration award," he told the press on Friday after the court handed down its decision.
The court said the border between Slovenia and Croatia is determined with the arbitration award, "yet another proof that Slovenia has been right all along - that Croatia must implement the arbitration award as well," said Cerar.
"No antics by the Croatian side can change this fact, which is finally written down black on white in the [court's] statement," said Cerar, who was confident Croatia would gradually recognise it needs to behave more constructively and in line with the law.
"Slovenia must be patient. The law is on our side. The border has been determined and we have signed it into law. There is no reason for any excitement or rushing, but we have to persistently exert legal pressure."
Cerar, a jurist by profession, also expressed disappointment at the court not having had the courage to decide the matter on substance. "This is a defensive stance about the rule of law, the European legal order as well as international law," he said.
If the judges decided to delve into the substance of the matter, they would be bound to decide that Croatia is violating EU law, he said.
Marko Vrevc, a senior Foreign Ministry official who has worked on the border arbitration brief for years, sees the decision as a confirmation that "implementation of the law as interpreted and implemented by Slovenia is fine, and Slovenia will continue to pursue it."
He was particularly pleased with the court's appeal that the two countries should endeavour to bring about a legal solution to the dispute. "We're now counting on Croatia realising in a foreseeable time that this dialogue is needed on this basis."
The court today announced that it was not within its purview to hear the case, but it nevertheless urged both sides to "strive sincerely to bring about a definitive legal solution to the dispute consistent with international law".
Croatia, on the other hand, interprets the decision as a victory of its arguments. Prime Minister Andrej Plenković thus reiterated Croatia's long-held stance that the dispute should be resolved in bilateral talks and urged Slovenia to engage in "dialogue and bilateral negotiations".