of International Law as a Litmus Test for the Application of EU Law in Southeast Europe

This volume focuses on national courts in SEE countries. Our interest in the judicial branch derives from the fact that the courts of the EU Member States are essential for the life of EU law. Unlike in the federal model of the United States, where the application of federal law is in the hands of federal, and not state, courts (‘horizontal federalism’), the EU relies on state courts to serve as European courts (‘vertical federalism’).² Namely, European law entrusts national courts to apply EU law directly (direct effect),³ to interpret national law in the light of EU law (indirect or interpretative effect),⁴ to adjudicate damages caused to an individual by a Member State acting contrary to EU law,⁵ to communicate with the Court of Justice concerning the appropriate interpretation and validity of EU law,⁶ etc. Significant parts of EU law have actually been developed thanks to the preliminary references of national courts. The ECJ established some of the most important principles of EU law, such as mutual recognition,⁷ observance of fundamental rights,⁸ or equal pay for work of equal value,⁹ precisely in response to a question raised by a national court.

The aim of this book is to tease-out how prepared the national courts of SEE countries are for these functions. The underlying premise is that the courts’ readiness to apply EU law lies in correlation to their application of international law. In Van Gend en Loos, the European Court of Justice famously held that ‘the Community constitutes a new legal order of international law’¹⁰ and since then EC/EU law has evolved into a unique supranational legal order.¹¹ Still, the EU functions within the international legal order and many parts of international law are vital for the operation of the EU. From the perspective of the SEE countries, accepting certain parts of international law is even a prerequisite for developing closer ties with the EU (e.g. cooperation with international criminal tribunals, observing fundamental rights treaties such as the European Convention for Human Rights (ECHR), and for becoming a member of the World Trade Organization (WTO)). The EU also uses agreements such as the Stabilisation and Association Agreement (SAA) for strengthening cooperation.

The book has two central parts (Parts II and III), corresponding to the two parts of the research.

Part II of the book contains horizontal chapters looking at the application of specific parts of international law in all SEE countries. These chapters are relatively narrow in terms of subject matter in the sense that they examine only one area of international law, but are broad in their jurisdictional coverage in that they deal with judicial behaviour in all eight countries.

Three areas of international law are taken as representative to serve as comparators in projecting preparedness for the application of EU law: WTO law, the SAAs, and the Aarhus convention.¹²