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

SEE country

Signing of the SAA

Entry into force of the SAA

Potential candidate country status

Candidate country status

Scheduled EU accession


June 2006

April 2009

June 2003

June 2014

Bosnia and Herzegovina

June 2008

June 2003


June 2003


April 2001

April 2004

June 2003

December 2005


October 2007

May 2010

June 2003

December 2010


April 2008

September 2013

June 2003

March 2012

aEuropean Commission, European Neighbourhood Policy and Enlargement Negotiations. http://​ec.​europa.​eu/​enlargement/​countries/​check-current-status/​index_​en.​htm#pc. Accessed 25 November 2014. Kosovo’s SAA negotiations were concluded in 2014. At the time of the EU-Western Balkans Summit in Thessaloniki in June 2003 which recognised Western Balkan countries as potential candidate countries, Kosovo was part of Serbia and Montenegro. It declared independence in February 2008. At the time of the Thessaloniki Summit, Montenegro was part of Serbia and Montenegro. It declared independence in June 2006

For the countries of the SEE and for the EU as a whole, it is relevant to know, when they accede, whether these countries will be able to fully function as part of the EU. Some of the previous enlargements have shown that not all new members were equally prepared for EU accession. The extent of their readiness was visible in many areas such as the translation of the acquis communautaire, including the decisions of the Court of Justice (CJEU), the use of EU structural funds, interest in EU politics, participation in elections for the European Parliament, etc.

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

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