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Judicial Application of International and European Law in Southeast Europe

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Judicial Application of International Law in Southeast Europe

Abstract

The Southeast European countries examined in this book share a similar recent legal history and a future strategic goal. With the aim of acceding to the EU, a general political will exists to abide by international and European law. This will has even been translated in more or less clear terms in the constitutions of the SEE countries, enabling the direct applicability of ratified international agreements to run supreme over national legislation. However, what is important is not the creation of constitutional and institutional frameworks per se, but the degree to which the judiciary is able to critically assess and apply various, sometimes conflicting, laws. Unfortunately, practice has shown that, unless provisions have been explicitly incorporated into national law, the domestic courts of EU aspirant countries are generally reluctant to apply international law.

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Notes

  1. 1.

    The loose geographical concept employed in this volume applies to the successor states of the Socialist Federal Republic of Yugoslavia + Albania. It does not encompass Greece, Bulgaria, Romania and Turkey.

  2. 2.

    Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part [2004] OJ L84/1-197; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part [2005] OJ L26/3-220; Council of the European Union, Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part (6.6.2008) 8226/08; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part [2009] OJ L107/116-502; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part [2010] OJ L108/3-254; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part [2013] OJ L278/14-471.

  3. 3.

    Interim Agreement on trade and trade-related matters between the European Community, of the one part, and Bosnia and Herzegovina, of the other part, [2008] OJ L169/13–807.

  4. 4.

    The EU and Kosovo chief negotiators initialled the SAA in Brussels on 25 July 2014.

  5. 5.

    See also Janja Hojnik’s interpretation about the views held in Slovenian legal theory in the chapter Judicial Application of International and EU Law in Slovenia.

  6. 6.

    See Denza (2006), p. 429; Stein et al. (2012), p. 58.

  7. 7.

    Emphasis added.

  8. 8.

    The Albanian Constitution also refers directly to the ECHR (Art. 17). See the chapter by Gentian Zyberi and Semir Sali, The Place and Application of International Law in the Albanian Legal System.

  9. 9.

    See, e.g., Arts. 22, 23 and 33 of the Slovenian Constitution, Art. 3 of the Croatian Constitution and Arts. 25 and 31 of the Kosovo Constitution. See also the chapters by Janja Hojnik, Judicial Application of International and EU Law in Slovenia; Ivana Božac and Melita Carević, Judicial Application of International and EU Law in Croatia; and Kushtrim Istrefi and Visar Morina, Judicial Application of International Law in Kosovo.

  10. 10.

    See the chapter by Marija Risteska and Kristina Miševa, Application of International Law in Macedonia.

  11. 11.

    Art. 53 of the Kosovo Constitution. See also the chapter by Kushtrim Istrefi and Visar Morina, Judicial Application of International Law in Kosovo.

  12. 12.

    See Art. 3a of the Slovenian Constitution and Art. 145 of the Croatian Constitution. See also the chapters by Janja Hojnik, Judicial Application of International and EU Law in Slovenia; and Ivana Božac and Melita Carević, Judicial Application of International and EU Law in Croatia. More generally, see Albi (2005) and Kellermann et al. (2006).

  13. 13.

    See the chapter by Tamara Perišin, Judicial Application of WTO Law in Southeast Europe.

  14. 14.

    See the chapter by Lana Ofak, Application of the Aarhus Convention in Southeast Europe.

  15. 15.

    Rodin (2009). http://www.pravo.unizg.hr/_download/repository/13_Rotterdam.pdf. See also Kühn (2006), p. 19; and Bobek (2011), p. 4: Legislative sovereignty was put on a pedestal, and law ‘operated with the notion of unity of state power, not the separation of powers’.

  16. 16.

    Rodin (2009), p. 2.

  17. 17.

    Kühn (2004), p. 550.

  18. 18.

    Berenschot and Imagos, ‘Final main report: thematic evaluation of rule of law, judicial reform and fight against corruption and organised crime in the Western Balkans – Lot 3’, IPA Service Contract Ref. No 2010/256 638, February 2013, p. 26.

  19. 19.

    See Article 122(1) of the Albanian Constitution; Article 118(3) of the Croatian Constitution; Article 22 of the Kosovo Constitution; Article 98(2) of the Macedonian Constitution; Article 9 of the Montenegrin Constitution; Article 16(2) of the Serbian Constitution; Article 8(2) of the Slovenian Constitution.

  20. 20.

    As explained by Sanja Bogojević in her contribution to this book, ‘Europeanisation’ of the Judiciary in Southeast Europe, several SEE countries have also established special institutions and judicial pathways to facilitate the application of international law. In Serbia, for instance, a Commission for Information of Public Importance and Personal Data Protection has been set up to help litigators in making the necessary international law references. In BiH, litigants have the right to appeal to the provincial Human Rights Commission after they have exhausted all access to the domestic judiciary. This system is understood to help ensure that judicial decisions are in line with European and international principles of human rights. Similarly, the lower courts may refer to constitutional court issues concerning the ECHR or matters of public international law. See Gould (2002), pp. 178–179.

  21. 21.

    See the chapter by Mirjana Drenovak Ivanović and Maja Lukić, Judicial Application of International Law in Serbia.

  22. 22.

    Extensive citation of ECtHR case law by the Constitutional Court has become commonplace, but it remains very rare for other courts, even the Supreme Court, to do so. See Ćapeta (2005), p. 23, at 37.

  23. 23.

    Croatia (since 2000) and Slovenia (since 1995).

  24. 24.

    See the chapter by Gentian Zyberi and Semir Sali, The Place and Application of International Law in the Albanian Legal System.

  25. 25.

    Croatia stands out as the single exception.

  26. 26.

    All have also signed up to the 2003 Protocol on Pollutant Release and Transfer Registers (BiH and Montenegro still need to ratify the latter). Slovenia is the only country that has ratified the GMO amendment. These acts remain beyond the remit of the current research though.

  27. 27.

    In Slovenia: Judgment of the Administrative Court, I U 2/2010; in Croatia: Judgment of the Administrative Court, Us-7555/2004-5, Judgment of the Misdemeanour Court in Zagreb, VI-G-2047-09). Ofak also mentions that out of 83 communications by individuals to a designated Committee which deals with cases of non-compliance under the Aarhus Convention, only four cases have been triggered by citizens of Western Balkan countries (two from Albania and two from Croatia). This harks back to the point made by Perišin, namely that the lack of education in the field partly explains the absence of attempts to invoke or refer to international environmental law.

  28. 28.

    Judgment of 23 October 2009, Us-5235/2009-5, in a case in which the Croatian Society for Bird and Nature Protection appealed against a decision by the Ministry of Environmental Protection refusing to allow the Society to make copies of an environmental impact assessment study for the project ‘Control works on the River Drava’ over alleged breach of the intellectual property rights of the author of the study.

  29. 29.

    There exist several EU Directives, binding on the Member States, that include rules on access to information, public participation in decision-making and access to justice in environmental matters: e.g., Directives 2003/4/EC, 85/337/EEC, 2001/42/EC, 2003/35/EC, 2004/35/EC.

  30. 30.

    Ofak claims that the procedural rules of the Convention which were not incorporated into EU law remain irrelevant for the adjudication of disputes. Examples from Slovenia and Macedonia include Judgment of the Administrative Court, I U 2/2010, and Citizens of Veles v. Republic of Macedonia, respectively.

  31. 31.

    See the chapter by Janja Hojnik, Judicial Application of International and EU Law in Slovenia.

  32. 32.

    Zagreb County Court, judgment 15 Pnz-6/10-27 of 6 April 2011. The plaintiffs invoked the CJEU judgment in case C-54/07 (Firma Feryn) in which an executive’s general statements against hiring immigrants were considered discriminatory.

  33. 33.

    See, e.g., the Constitutional Court’s judgment in Instituti i Ekspertëve Kontabël të Autorizuar, in which the Court invoked Directive 2006/43 on statutory audits of annual accounts and consolidated accounts as support in order to reject a claim that the national law on auditing was unconstitutional. It found, for example, that State supervision of auditors did not violate the independence of the profession, inter alia because such supervision is required by the Directive. Thus, hypothetical conformity with EU law was used as an argument for the actual conformity of the law with the Albanian constitution, though without clarifying the precise basis on which EU law was taken into account. See the chapter by Gentian Zyberi and Semir Sali, The Place and Application of International Law in the Albanian Legal System.

  34. 34.

    Judgment of the Appellate Court in Belgrade, Rev. 2401/2010 of 28 April 2010. The Supreme Court supported its findings in a family law dispute by referring, in general terms, to the provisions on the right to family life and children’s rights of the EU Charter of Fundamental Rights—again, without explaining why the Charter was a relevant legal source. See the chapter by Mirjana Drenovak Ivanović and Maja Lukić, Judicial Application of International Law in Serbia. See further Blockmans and Mihajlovic (2011), pp. 65–94.

  35. 35.

    See, e.g., Łazowski and Wentkowska (2009), pp. 277–323 at 293–298. See also the chapter by Janja Hojnik, Judicial Application of International and EU Law in Slovenia. See further the national reports in Kellermann et al. (2006).

  36. 36.

    The Albanian Constitutional Court found a violation of the SAA standstill clause, prohibiting the introduction of new or more restrictive quantitative restrictions on imports and measures having equivalent effect, against a decision of the Albanian Council of Ministers which treated domestically produced diesel oils more favourably than imports. The Constitutional Court not only found fault with the SAA standstill clause but also the SAA provision on measures that ‘constitute a means of arbitrary discrimination or a disguised restriction on trade’. See the chapter by Gentian Zyberi and Semir Sali, The Place and Application of International Law in the Albanian Legal System. See further Caka and Blockmans (2010), pp. 511–530.

  37. 37.

    In Makpetrol v. Ministry of Finance Customs Office, the First Skopje Basic Court similarly disapplied two by-laws imposing customs duties in violation of the Macedonian SAA and interim agreement. This judgment is the only example found for the purposes of this book of an ordinary court disapplying a provision of national law on the basis of the SAA. The court even made a declaratory finding that the provisions were ‘no longer in force’ because they conflicted with the SAA and the interim agreement. See the chapter by Marija Risteska and Kristina Miševa, Application of International Law in Macedonia.

  38. 38.

    See, e.g., the 2006 case law of the Croatian Administrative Court, as well as the 2010 judgment of that court that again refuses the application of EU law, in contrast to the Constitutional Court. See also the chapter by Ivana Božac and Melita Carević, Judicial Application of International and EU Law in Croatia. Apart from Croatia, there is only one such case in the national reports: Court of BiH, decision No. S1 3 U 005412 10 Uvl of 15.3.2012, M.R.M. Ljubuški/ASA Auto d.o.o. Sarajevo (ASA Auto). See the chapter by Zlatan Meškić and Darko Samardžić, Application of International and EU Law in Bosnia and Herzegovina.

  39. 39.

    See the chapter by Mislav Mataija, The Unfulfilled Potential of Stabilisation and Association Agreements Before Southeast Europe Courts: “There are a number of examples of SEE courts refusing to interpret domestic law in the light of EU sources. One of them is the Serbian Constitutional Court judgment in ERC Commerce Computers, a customs classification case”. The Croatian Constitutional Court, too, rejected a complaint related to a customs procedure during which imported goods were reclassified under a higher tariff heading. Another example concerns the High Commercial Court in Croatia, which in a 2007 ruling rejected a party’s attempt to use the SAA as a basis for relying on the Treaty rules on free movement of goods and the corresponding ECJ case law in a case on parallel imports and the trade mark exhaustion of rights principle.

  40. 40.

    Łazowski and Blockmans (2014), pp. 108–132.

  41. 41.

    Bobek (2008), p. 99.

  42. 42.

    See the chapter by Mislav Mataija, The Unfulfilled Potential of Stabilisation and Association Agreements Before Southeast Europe Courts.

  43. 43.

    The reform of curricula should not be limited to the judicial academies but should also be implemented at graduate and undergraduate levels at university. See Malleson (1997), pp. 655, 667. See the chapter by Sanja Bogojević, ‘Europeanisation’ of the Judiciary in Southeast Europe.

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Authors and Affiliations

  1. Professor of EU External Relations Law and Governance, University of Amsterdam, 1012 WX, Amsterdam, The Netherlands

    Steven Blockmans

  2. Head of EU Foreign Policy, Centre for European Policy Studies, Brussels, Belgium

    Steven Blockmans

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Correspondence to Steven Blockmans .

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Editors and Affiliations

  1. Judge, Court of Justice of the European Union, Luxembourg, European Union

    Siniša Rodin

  2. Faculty of Law, University of Zagreb, Zagreb, Croatia

    Tamara Perišin

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Blockmans, S. (2015). Judicial Application of International and European Law in Southeast Europe. In: Rodin, S., Perišin, T. (eds) Judicial Application of International Law in Southeast Europe. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-46384-0_14

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