Unfulfilled Potential of Stabilisation and Association Agreements Before SEE Courts


Ways of applying SAAs/EU law

Legal basis for applying SAAs/EU law

Application of the SAA itself

Direct application (e.g. Makpetrol)

Indirect application (no examples found)

Application of the EU acquis on the basis of the SAA

General harmonisation clauses (the Croatian High Commercial Court judgments of 2006)

Specific interpretative duties or references to EU law, such as in competition law (e.g. ASA Auto; the Croatian Constitutional Court judgments of 2008 and 2010)

Amorphous citation of EU/international law

Unclear (e.g. the Croatian NGOs case)



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.

In addition, there are very few cases where the SAAs were applied directly or where a conflicting provision of national law was disapplied. In Croatia, for example, it seems there were no such cases in the eight years in which the SAA was in force prior to accession. In addition, there seem to have been no cases anywhere in which national law was (re-)interpreted in light of the provisions of the SAA itself, or where a court conducted a Polydor-like analysis of ‘mirror provisions’, comparing the interpretation that should be given to an SAA provision to that given to an equivalent Treaty provision by the CJEU.

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.



References



Blockmans S (2006) Western Balkans (Albania, Bosnia-Herzegovina, Croatia, Macedonia and Serbia and Montenegro, Including Kosovo). In: Blockmans S, Lazowski A (eds) The European Union and its neighbours: a legal appraisal of the EU’s policies of stabilisation, partnership and integration. TMC Asser Press, The Hague, p 315CrossRef


Blockmans S (2007) Tough love: the European Union’s relations with the Western Balkans. TMC Asser Press, The HagueCrossRef


Blockmans S, Lazowski A (2006) The European Union and its neighbours: questioning identity and relationships. In: Blockmans S, Lazowski A (eds) The European Union and its neighbours: a legal appraisal of the EU’s policies of stabilisation, partnership and integration. TMC Asser Press, The Hague, p 3


Bobek M (2006) A new or a non-existent legal order? Some (early) experience in the application of EU law in Central Europe. Croat Yearb Eur Law Policy 2:265


Ćapeta T (2005) Courts, legal culture and the enlargement of the EU. Croat Yearb Eur Law Policy 1


Ćapeta T (2006) Interpretativni učinak europskog prava u članstvu i prije članstva u EU. Zbornik Pravnog fakulteta u Zagrebu 56(5)


Elbasani A (2008) The stabilisation and association process in the Balkans: overloaded agenda and weak incentives? EUI WP SPS 2008/03


Harmathy A (2001) Constitutional questions of the preparation of Hungary to accession to the European Union. In: Kellermann AE, de Zwaan JW, Czuczai J (eds) EU enlargement: the constitutional impact at EU and national level. TMC Asser Press, The Hague. pp 315


Kellermann AE, de Zwaan JW, Czuczai J (eds) (2001) EU enlargement: the constitutional impact at EU and national level. TMC Asser Press, The Hague


Kellermann AE, Czuczai J, Blockmans S, Albi A, Douma WT (eds) (2006) The impact of EU accession on the legal orders of new EU Member States and (pre-)candidate countries: hopes and fears. TMC Asser Press, The Hague


Kühn Z (2005a) The application of European law in the new Member States: several (early) predictions. Ger Law J 6(3):563


Kühn Z (2005b) European law in the empires of mechanical jurisprudence: the judicial application of European law in Central European candidate countries. Croat Yearb Eur Law Policy 1


Noutcheva G (2009) Fake, partial and imposed compliance: the limits of the EU’s normative power in the Western Balkans. J Eur Public Policy 16:1065CrossRef


Phinnemore D (2003) Stabilisation and association agreements: Europe agreements for the Western Balkans? Eur Foreign Aff Rev 8:77


Renner S, Trauner F (2009) Creeping EU membership in south‐east Europe: the dynamics of EU rule transfer to the Western Balkans. J Eur Integr 31:449CrossRef


Rodin S (2005) Discourse and authority in European and post-communist legal culture. Croat Yearb Eur Law Policy 1:1


Rodin S (2006) Croatia. In: Blockmans S, Lazowski A (eds) The European Union and its neighbours: a legal appraisal of the EU’s policies of stabilisation, partnership and integration. TMC Asser Press, The Hague, p 357CrossRef


Schauer F (2008) Authority and authorities. Va Law Rev 94:1931


Stanić B (2008) The interpretative effect of European law in the judgment of the Croatian Constitutional Court No U-III-1410/2007. Croat Yearb Eur Law Policy 4:247


Volkai J (1999) The application of the Europe agreement and European law in Hungary: the judgment of an activist Constitutional Court on activist notions. Harvard Jean Monnet working paper 8/99