Unfulfilled Potential of Stabilisation and Association Agreements Before SEE Courts

Overall, the SAAs seem to have had rather limited effect. None of the SEE states have been particularly open to applying the SAAs or to imposing extensive pre-accession interpretative duties. For example, unlike the case in some of the Member States that joined the EU in 2004, there have been no conclusive judgments of the high courts of the SEE states that make it clear that the SAAs impose a general duty to interpret national law in line with EU law. Some judgments found that such a duty exists, but they were contradicted by later judgments of the same court or other courts.

The only exception to this rather limited role of EU law prior to accession has been competition law, where the SAAs make an explicit reference to the ‘criteria’ and ‘interpretative instruments’ of EU law. This ‘back door’ for the application of EU law has been grudgingly accepted, despite some controversy (see, for example, 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).

Finally, in some cases international or EU law has been used in a non-specified way, without clarifying its relevance or the basis for citing it. Paradoxically, SEE courts seem to be willing to rely on EU law, especially EU legislation, as long as no one raises the question of why they should do so. If that question is raised, however, they are more likely to take a conservative stance and refuse to take EU law into account, given that it is not a binding ‘source of law’. This response is given not only when EU law is claimed to be binding authority (meaning that national law has to be interpreted in the light of EU law), but even in some cases where it is invoked as persuasive authority or merely as a supporting argument (i.e. an interpretative choice that the court can, but need not, make).

I have suggested that the reasons for this paradox are similar to those that explain the general reluctance to rely on EU or international law. SEE courts seem to build their decisions by either fully relying on something as a ‘source of law’ or by simply refusing to apply it (finding, for example, that a provision has no direct effect or that it is irrelevant to the case at hand). Adapting the interpretation of a legal source in the light of other legal or non-legal material, including EU law, is not a part of the toolbox with which judges usually approach cases. Thus, EU law can be applied if it is somehow recognised ex ante—not necessarily on the basis of an explicit discussion—as a ‘source of law’. If, however, it is invoked in the context of a general duty to re-interpret another source of law, it may encounter resistance. This is also why explicit legislative or Treaty references to EU law, as in the case of the SAA provisions on the EU competition acquis, make it much more likely (but not certain) to have an impact.