ZAGREB, December 11, 2019 – Court of Justice of the European Union Advocate General Priit Pikamae believes the Court does not have jurisdiction in Slovenia’s case against Croatia over alleged infringements of EU law caused by the non-enforcement of a border arbitration award, it was said in Luxembourg on Wednesday.
The advocates general’s opinion is not binding on the Court of Justice. The advocate general does not represent the interests of either the parties or the public, only giving an expert opinion on relevant legal matters in complete independence.
We cannot predict the Court’s judgment based on the advocate general’s opinion, Court spokesman Balazs Lehoczki told reporters. He added that the judgment could be expected in the first half of 2020, perhaps in the first quarter.
The practice to date shows that in cases before the Grand Chamber, as in Slovenia’s action against Croatia, the Court follows the advocate general’s opinion in about 50% of the cases.
Since Croatia contested the validity of the arbitration award and refused to be bound by it, Slovenia brought infringement proceedings under Article 259 of the Treaty on the Functioning of the European Union, moving that the Court of Justice establish that Croatia is in breach of Articles 2 and 4 of the Treaty which concern respect for the rule of law and loyal cooperation between member states.
Slovenia also submits that Croatia is in breach of the regulation on the common fisheries policy, border control and maritime spatial planning.
Croatia submits that the Court of Justice has no jurisdiction to rule in the present case given that it is not really about the application and interpretation of EU law. According to Croatia, the dispute in this case refers to the interpretation and application of international law and therefore it should be resolved by applying international law and by means envisaged for the peaceful resolution of disputes, including negotiations.
“First of all, the Advocate General points out that the purpose of an action for failure to fulfil obligations is to obtain a declaration that the conduct of a Member State is in breach of EU law and to terminate that conduct. He is therefore of the view that it is necessary to examine the relationship of the arbitration agreement and the arbitration award in question with EU law and to determine whether the EU is bound by them,” the Court said in a press release.
In that regard, the Advocate General notes that the EU “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.”
“Relying on the case-law of the Court of Justice, the Advocate General 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, the Advocate General is of the view that delimitation of national territory does not fall within the sphere of competence of the EU or, therefore, of the Court of Justice,” said the press release.
“Next, the Advocate General examines Slovenia’s heads of claim. 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 notes that it does not fall within any of the situations in which the EU is bound by international law.”
As for the alleged infringement of the value of the rule of law and of the principle of sincere cooperation, “the Advocate General is of the view that those matters 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. Furthermore, the Advocate General states that, according to the case-law of the Court of Justice, 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 in relation to the common fisheries policy, border control and maritime spatial planning, the Advocate General observes that Slovenia is relying on the premise that the boundary has been determined by the arbitration award. However, the Advocate General emphasises that the award has not been implemented in the relations between the two Member States concerned. He is therefore of the opinion that, from an EU law perspective, the boundary between those two Member States has not been established. The Advocate General infers that Slovenia is seeking, by implication, to have the arbitration award implemented, which falls outside the EU’s sphere of competence,” the press release said.
The Advocate General concludes 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.”
Court spokesman Lehoczki said that sometimes a party lodged objections to an advocate general’s opinion, which the Court noted in its judgment and decided on the legal and factual elements available.
He added that sometimes, after an advocate general’s opinion was published, a party might also request another hearing but that this was not customary and that in nearly all cases the Court only mentioned those arguments in the judgment and decided on the legal and factual elements available.
More news about the border dispute between Croatia and Slovenia can be found in the Politics section.
