{"id":732,"date":"2020-02-18T17:59:42","date_gmt":"2020-02-18T16:59:42","guid":{"rendered":"https:\/\/site.uit.no\/nclos\/?p=732"},"modified":"2023-02-14T09:59:59","modified_gmt":"2023-02-14T08:59:59","slug":"cjeu-judgement-on-slovenia-v-croatia-what-role-for-international-law-in-eu-accession-dispute-settlement","status":"publish","type":"post","link":"https:\/\/site.uit.no\/nclos\/2020\/02\/18\/cjeu-judgement-on-slovenia-v-croatia-what-role-for-international-law-in-eu-accession-dispute-settlement\/","title":{"rendered":"CJEU judgement on Slovenia v Croatia: What role for international law in EU-accession dispute settlement?"},"content":{"rendered":"

By<\/strong>: Thomas Bickl<\/p>\n

PDF Version<\/strong>:Bickl II CJEU SLO CRO<\/a><\/p>\n

Matter commented on<\/strong>: CJEU judgement on jurisdiction Case Art. 259 TFEU Republic of Slovenia v Republic of Croatia (C-457\/18), 31 January 2020<\/p>\n

I. Introduction<\/strong><\/p>\n

With regard to the Case under examination here, the Republic of Slovenia brought infringement proceedings against the Republic of Croatia under Article 259 TFEU<\/a> before the Court of Justice of the European Union (CJEU) on 13 July 2018 (C-457\/18). In short, Slovenia claimed that Croatia violates its obligations to respect EU law by refusing to implement the arbitration award<\/a> on the maritime and land border between Croatia and Slovenia issued on 29 June 2017. To that end, an Arbitration Agreement<\/a> between the Republic of Croatia and the Republic of Slovenia had been concluded on 04 November 2009 in the course of Croatia\u2019s EU accession negotiations following a blockade of the Republic of Slovenia on the grounds that documents submitted by the Republic of Croatia during the negotiations prejudiced the definition of the disputed common State border.<\/p>\n

<\/p>\n

In the course of the arbitral proceedings, a disruption occurred due to media reports (on 22 July 2015) about a leaked intelligence recording of unlawful conversations (ex-parte<\/em> communication) between a Slovenian government representative and the Tribunal member appointed by Slovenia. As a result, the Republic of Croatia withdrew from the arbitral proceedings as of 31 July 2015 invoking a material breach of the Arbitration Agreement on the part of Slovenia pursuant to Art. 65(1) of the Vienna Convention on the Law of the Treaties VCLT<\/a>. On 30 June 2016, the Tribunal issued a Partial Award<\/a> to the effect that the arbitration procedure would continue. In particular, the Tribunal noted that, by means of ex-parte <\/em>communication, the Agent of Slovenia and the arbitrator appointed by Slovenia \u201cacted in blatant violation of [the confidentiality] provisions\u201d (PCA Partial Award, 2016: para 175). The Tribunal subsequently explored whether the integrity of the proceedings could be preserved, and, if so, in what way. It recalled that the Tribunal had been recomposed properly with two new and independent Members following the resignation of the two party-appointed arbitrators (ibid<\/em>, paras 183-6). In relation to the two documents the arbitrator appointed by Slovenia had introduced into the proceedings after the ex-parte<\/em> communication with Slovenia\u2019s Agent, the Tribunal found that the arbitrator had not presented any new arguments or facts that were not already in the official record of the Tribunal. Besides, the views expressed by both party-appointed arbitrators vis-\u00e0-vis the arguments and facts on the Tribunal\u2019s record were of no relevance for the work of the current Tribunal as the previous party-appointed Members both had resigned, so procedural imbalance could not be observed, either. In conclusion, the Tribunal noted no obstacles as to the continuation of the arbitral proceedings (ibid<\/em>, paras 187-196). The Republic of Croatia, however, denies<\/a> the legality of the Tribunal\u2019s decision and does not recognise the Partial Award and the Final Award.<\/p>\n

The claim of the Republic of Slovenia before the Court consists of six pleas<\/a>, two on EU primary law: the respect of the rule of law (Art. 2 TEU) and the duty of sincere cooperation (Art. 4(3) TEU), and four on EU secondary legislation: obligations arising from the Fisheries Regulation 1380\/2013<\/a>, the Fisheries Control Regulations 1224\/2009 and 404\/2011, the Schengen Code (Arts. 4, 13, and 17), and the Maritime Planning Directive 2014\/89 (see Judgement C-457\/18<\/a>, para 1). The main argument is that the non-implementation of the arbitration award by Croatia prevents Slovenia from fulfilling its obligations of territorial application of EU law.<\/p>\n

The Republic of Croatia submitted a motion of inadmissibility<\/a> on 21 December 2018 on the grounds that (i) the claims of Slovenia were only ancillary to the settlement of the bilateral dispute about the validity of the arbitration agreement and the arbitration award, (ii) the above dispute had to be settled according to the rules of international law which were not related to the application of EU law, and (iii) the  Court had no jurisdiction to rule on the validity or legal effects of either the arbitration agreement or the arbitration award both of which were not an integral part of EU law as the arbitration agreement was the real basis of the infringements of EU law pleaded by the Republic of Slovenia (Judgement C-457\/18, paras 75-77).<\/p>\n

The Court has decided to separate the issues of admissibility and, should the necessity arise, the merits of the Case. A hearing on the issue of admissibility and jurisdiction was held before the Grand Chamber on 08 July 2019. The Advocate General presented its Opinion on 11 December 2019 recommending the Court had no jurisdiction. For a critical appraisal of the AG\u2019s Opinion see my previous blog<\/a>.<\/p>\n

II. Summary CJEU judgement<\/strong><\/p>\n

 <\/strong>The Court has examined whether it has jurisdiction, i.e. whether the arbitration agreement and the arbitration award are a matter of EU law and thus create obligations under EU competence. In its deliberations, the Great Chamber found, inter alia<\/em>, that<\/p>\n