22Nd FIDE CONGRESS- National Report Croatia
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22nd FIDE CONGRESS, 1 – 4 November 2006, Limassol - Cyprus
NATIONAL REPORT FOR CROATIA
National Rapporteurs (co-authors): Prof. Siniša Rodin & Dr. Iris Goldner Lang
Topic 3: External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law
Introduction
Croatia is not an EU Member State, but has started the process of alignment of its legislation with the acquis with the aim of future integration into the European Union. Croatia signed a Stabilisation and Association Agreement1 on 29 October 2001 and the Agreement is in force as of 1 February 2005. Additionally, an Interim Agreement, covering trade and trade-related measures, was concluded parallel with the Stabilisation and Association Agreement and was in force from 1 March 2002 until entering into force of the Stabilisation and Association Agreement. Croatia applied for EU membership on 21 February 2002 and accession negotiations were opened on 4 October 2005.
Due to the fact that Croatia is not a Member State, some questions could not be applied to Croatian position and were, for that reason, difficult if not impossible to answer. Nevertheless, Croatian national rapporteurs tried to approach such questions from a different angle – the one of an associated state on its way to EU accession.
Chapter 1 - Competence
1. Under the AETR doctrine the European Community has exclusive competence to enter into an international agreement where the agreement affects EC rules. As EC legislation expands in an ever increasing number of areas, many of which are (relatively) new (e.g. immigration, asylum, conflict-of-laws, anti-discrimination law), which are the practical examples of the AETR-effect? In which cases has EC participation in a negotiation, resulting from the AETR rule, been discussed? Is there a national or European mechanism for checking AETR-effects, when Member States enter into a new negotiation, or when an agreement is amended or renegotiated? Which political, legal, and practical problems were raised?
According to the AETR doctrine, certain areas of shared competence become EC exclusive competence as the Community adopts internal legislation and, thus excludes Member States’ action externally (e.g. fisheries – see Cases 3, 4 and 6/76). AETR rule
1 Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part, signed at Brussels, 29 October 2001, COM(2001) 371 final, 9 July 2001. has been discussed in Opinion 1/762, Opinion 2/91,3 Opinion 1/944 and Air Transport cases5, but all these cases took a different angle based on the concept of “necessity”. The consequences of the AETR-effects is that, first, the Community is given exclusive competence, once it exercises its internal powers, and, second, Member States’ are excluded from further action in this field. A number of political, legal and practical consequences resulted from the AETR doctrine. First, the Court chose a teleological interpretation of the Treaty by stating that the Community has treaty-making powers beyond those expressly granted by the EC Treaty.6 Second, the AETR doctrine supports the doctrine of “parallelism” between the internal and the external action. However, it is the exercise of such internal power that is necessary, not merely its existence.7 Third, the AETR doctrine, obviously, goes in favour of the Community powers, to the detriment of the Member States. It goes in favour of the Commission and leaves the Council at a disadvantage.
Finally, the Constitutional Treaty also relies on the AETR-principle when referring to shared competence by stating that once the Union has exercised its competence, the Member States can no more exercise theirs.8 It, however, preserves shared competence, despite the fact that the Union has taken internal action, in the areas of developmental cooperation and humanitarian aid.9
In Croatia, international treaty-making power is vested, depending on circumstances, in the Parliament, the President of the Republic, or the Government. The Parliament has to ratify treaties that necessitate further legislative enactment or amendment, treaties of military or political nature, and treaties that bear financial consequences. 10 International treaties that delegate constitutional powers to an international organization or alliance have to be ratified by the two-third majority of all votes. Treaties that do not have to be ratified by the Parliament can be concluded by the President of the Republic, or the Government, respectively.
Conclusion of international treaties is also subject to the Act on Conclusion and Performance of International Treaties (hereinafter: the International Treaties Act). 11 The Act distinguishes different treaty-making stages, namely, the incentive, the initiative, the negotiations and the signing. While the incentive to negotiate an international treaty may come from any State authority, the formal initiative has to be launched by the President of the Republic or by the Government. That decision has to
2 See paragraph 12 in Opionion 1/76. 3 See paragraph 7 in Opinion 2/91. 4 See paragraph 48 in Opinion 1/94. 5 See e.g. paragraph 70 in Case C-476/98. 6 Paragraph 15 states: “To determine in a particular case the Community’s authority to enter into international agreements, regard must be had to the whole scheme of the Treaty no less than its substantive provisions”. 7 Paragraph 18 of the Case 22/70. 8 Article I-11(2) of the Constitutional Treaty: “The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence” 9 Article I-13(4) of the Constitutional Treaty. 10 Constitution (Croatia), Art. 139e 11 Zakon o sklapanju i izvršavanju međunarodnih ugovora, Narodne novine (Official Gazette) No. 28/1996 specify the Constitutional grounds on which the Treaty is based, and the negotiating framework, including the specification of the authority to enter into a treaty. The negotiating framework is binding on the authority negotiating the treaty.
The treaty-making power has to be seen within the broader constitutional context, particularly taking in mind constitutional provision defining the State sovereignty. Namely, both Art. 139 of the Constitution, and the International Treaties Act were drafted not taking in consideration possible membership of the EU. The Constitution defines State sovereignty in absolute terms, leaving a little space for shared exercise at European Level, and this is reflected in the Treaty-making procedure too.12 Therefore, no phenomenon similar to AETR-like preemption was envisaged and present Croatian legislation is silent on the point.
Croatian government is considering constitutional amendment in view of expected accession to the EU. While the amendment will have to deal primarily with the issue of legal basis and procedure for the accession, it may also tackle the sensitive issue of sovereignty which present authors suggest to be re-defined from summa potestas to the place-at-the-table model. Issue of international treaties has not been mentioned so far, despite of the potentially significant political consequences. While the Constitutional provision is broad enough to accommodate AETR principle, once the constitutional powers are delegated to the EU, the International Treaties Act may have to be amended in order to allow regulatory pre-emption of national competence.
In the pre-accession period, the AETR case is relevant for interpretation of the Stabilisation and Association Agreement.13 Namely, Art. 120 of the Agreement, similarly to Art. 10 of the EC Treaty, stipulates that “The Parties shall take any general or specific measures required to fulfil their obligations under this Agreement. They shall see to it that the objectives set out in this Agreement are attained.” This commitment extends to all the aims of the Association, including the aim “to provide an appropriate framework for political dialogue, allowing the development of close political relations between the Parties;”14 Furthermore, subject to Art. 7, the political dialogue extends to promotion of “…common views on security and stability in Europe, including co-operation in the areas covered by the Common Foreign and Security Policy of the European Union.“ Having in mind general principle of international law mandating bona fide performance of international agreements,15 it is easy to conclude that Art. 120 requires allignment with the Community external action. In such circumstances, undertaking an international obligation towards a third country that would be contrary to obligations under the Agreement, or undertaking an external policy action that would contradict a common position undertaken within framework of the common foreign and security policy, would amount to violation of Art. 120 of the SAA. Although one can not speak about pre-emption in terms of paragraph 17 of the AETR case, there is a legal duty under Art. 120 of the SAA to abstain from any external action contrary to one of the EC.
12 See: T. Ćapeta, D. Mihelin and S. Rodin, Croatia, in Steven Blockmans & Adam Lazowski (eds.), THE EUROPEAN UNION AND ITS NEIGHBOURS A LEGAL APPRAISAL OF THE EU’S POLICIES OF STABILISATION, PARTNERSHIP AND INTEGRATION, Asser, The Hague 2006; See also: S. Rodin and T. Ćapeta, (Non-)Ratification of the Constitutional Treaty – Implications for Croatia, Paper presented at Conference “Ratification of the European Constitution: Implications for the National Constitutions”, Tallinn, 3-4 November 2005, forthcoming 13 O.J. C332E /2 of 27.11. 2001 14 Art. 2 of the SAA 15 Case 104/81, Hauptzollamt Mainz v. C.A. Kupferberg, [1982] ECR 3641, at pt. 18 Indeed, following the Thessaloniki Presidency conclusions in June 2003, a new mechanism of cooperation in foreign policy between the EU and states of South East Europe was instituted. Since then the EU committed to invite, "…as appropriate, the SAP countries to align themselves with EU demarches, declarations and common positions on CFSP issues", without possibility to take part in their adoption.16 Since then, joining the common positions has become regular practice in Croatia.17
2. Thinking outside the box: Is not the AETR-principle too strong in some cases, in the sense of requiring EC participation in an international negotiation and in the conclusion of an agreement whenever some EC-law provisions are affected? Could EC interests be protected through mechanisms other than full participation? Are there any examples of this?
Although accepted by the Member States today, the AETR-principle was viewed as rather controversial at the time of the AERT judgement. However, there are certain areas where the effects of the AERT judgement do not apply, i.e. where the EC internal action will not exclude Member States’ action, thus leaving open the possibility of shared competence. An example of such shared competence, which equally protects EC and Member States’ interests, is developmental cooperation. Here the EC Treaty specifically states that “within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the competent international organisations” and continues that Community competence to conclude agreements with third parties “shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements”.18 By opting for shared competence instead of full Community participation, such a mechanism allows for complementary policies pursued parallel by the Community and the Member States.
4. What has been the practice over the last ten years in WTO negotiations on services (GATS)? Have the Member States been involved in an individual capacity? Have any of them produced their own proposals or submissions? Have any of them claimed an independent role? Has the practice been affected by the entry into force of the Treaty of Nice (new Article 133 EC)? Has it been affected by the Treaty establishing a Constitution for Europe? Same questions for WTO negotiations on intellectual property (TRIPs).
Croatia is not an EU Member State but has been a member of WTO since 30 November 2000. As part of Doha negotiations, initiated in 2001, Croatia has
16 Council conclusions of 16 June on the Western Balkans, Annex "The Thessaloniki Agenda for the Western Balkans: moving towards European integration". Also, a forum comprising foreign ministers of EU and states of SE Europe created additional space for participation of these countries in European foreign policy. The Forum held its first meeting in Brussels on December 9, 2003. 17 The most recent example is Council Common Position 2004/694/CFSP of 11 October 2004 on further measures in support of the effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY). As it is reprted by the Council, Croatia and other countries declared that they share the objectives of the mentioned Council Common Position. See Council of the EU, Prress Release, Brussels 21 October 2004, 13757/04 (Presse 301) P 120/04 18 Article 181 EC. received several requests from other WTO members, such as the USA and Japan, and has submitted its initial offer. It is to be seen how the negotiations are going to develop, based on the submitted requests and offers.
5. What views are there on external EC competence in the field of human rights? To what extent is Opinion 2/94 still relevant, in light of the subsequent Treaty amendments? What positions are there in Member States on accession to the European Convention on Human Rights? How does the non-ratification of the Constitution for Europe affect those positions?
In its Opinion 2/94 the Court ruled that the Community has no power to accede to the European Convention on Human Rights without an amendment of the Treaties. It stated that Article 308 cannot be used as a legal basis for measures that would amend the Treaty without following the procedure provided for that purpose. However, later on in June 1999 the European Council in Cologne concluded that a charter, containing fundamental rights and liberties guaranteed by the European Convention on Human Rights and derived from constitutional traditions common to all Member States, should be drafted. The Charter was adopted with the Nice Treaty amendments in December 2000. Despite the fact that it is not a binding document, Advocates General regularly quote the Charter in their opinions and, thus, prove its value.
Article 51(1) of the Charter determines its scope by stating that its provisions “are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law” (emphasis added). This means that the Charter does not apply to national activities which are not covered by Union law.
The Constitutional Treaty integrated the Charter in its Part II. Article I-7 of the Constitutional Treaty proclaims that “the Union shall recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights which constitutes Part II of the Constitution” and continues by stating that “fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law”. Further on, “the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms” but “such accession shall not affect the Union's competences as defined in the Constitution”. The non-ratification of the Constitutional Treaty leaves the Union at the level of the Nice amendments, thus having the Charter which is still not a binding document and without the statement, provided by the Constitutional Treaty, that the Union shall accede to the European Convention for the Protection on Human Rights.
As regards Croatia, it has acceded to the European Convention on Human Rights and there are no reasons to suspect that once Croatia joins the Union, it would not object to its accession to the European Convention on Human Rights.
However, an interesting development took place in course of accession negotiations with Croatia. Unlike in case of the States of the "Big Bang" Enlargement, human rights are made a separate negotiating chapter in respect of Croatia (Judiciary and Human Rights). 19 Also, a suspension clause was introduced under pt. 12 of the
19 NEGOTIATING FRAMEWORK, Luxembourg, 3 October 2005 Framework. The negotiations can be suspended in case of a “serious and persistent breach […] of the principles of democracy, respect for human rights and fundamental freedoms and the rule of law on which the Union is founded”. Suspension would require a Commission initiative or a request to that effect by one third of the Member States. The final decision would be made by the Council by qualified majority, and the European Parliament would be informed.
While such a suspension is unlikely to take place, another issue was raised by non- ratification of the Constitutional Treaty and by the non-binding nature of the Charter of Rights. Namely, is it legitimate to require from a candidate country to comply with stricter criteria then those required from Member States proper, and those under the European Human Rights Convention.
Another potential problem is related to possible linkage of human rights issues with all other negotiating chapters that is being suggested in respect of Turkey. If such an approach is taken, human rights benchmarks would be tested across the board what could significantly slow down the accession process.
6. Concerning mixed agreements in general, especially those with an institutional dimension: Are there any examples of specific competence problems, in terms of new negotiations, or of participation in the work of the institutions/organisation as set up by the mixed agreement? What mechanisms exist to give effect to the duty of cooperation between the EC and the Member States?
I) No association agreement allows the involvement of the associated state in the EU institutional framework and its participation in the decision-making process of the Union’s own institutions. Instead, Article 310 EC stipulates that an association involves a “special procedure”, implying the establishment of an institutional framework of the association, in the form of joint bodies, for the purpose of implementing the agreements.20 Stabilisation and Association Agreement with Croatia is equipped with the following joint bodies: Stabilisation and Association Council,21 Stabilisation and Association Committee22 and Stabilisation and Association Parliamentary Committee.23
The Stabilisation and Association Council, as the main political institutions of the association, is responsible for the supervision of the implementation of the agreement. Representation in the Stabilisation and Association Council is at ministerial level. Thus, Croatian Stabilisation and Association Agreement stipulates that the Stabilisation and Association Council shall consist of the members of the Council of the European Union and members of the Commission of the European Communities,
20 According to Phinnemore (Phinnemore, D., Association: Stepping-Stone or Alternative to EU Membership?, Sheffield Academic Press, 1999, p. 26.) association agreements were supported by institutional framework as the result of Greek insistence, to be involved in the EEC’s decision-making process, upon its conclusion of the association agreement in the early 1960s. The six founding Member States would not agree to opening the internal decision-making structure to associated states and, consequently, decided to supply each association with its own institutional framework. 21 E.g. Article 110 of Croatian Stabilisation and Association Agreement. 22 E.g. Article 114 of Croatian Stabilisation and Association Agreement. 23 E.g. Article 116 of Croatian Stabilisation and Association Agreement. on the one hand, and of members of the Croatian Government, on the other.24 Decisions taken by the Stabilisation and Association Council, within the scope of the association agreement and in cases provided for therein, are binding on the parties, which are obliged to take necessary measures for their implementation.25 The ECJ has held that such decisions of association councils are directly connected with the agreement to which they give effect and, like the agreement itself, form an integral part of Community legal system, as of their entry into force.26 For this reason decisions of the Stabilisation and Association Council are capable of having direct effect, just like the association agreements’ provisions themselves, provided they satisfy the criteria of clarity and unconditionality.
The Stabilisation and Association Council is assisted in the performance of its duties by the Stabilisation and Association Committee consisting of representatives of the Council of the European Communities and members of the Commission, on the one hand, and of members of Croatian Government, on the other hand.27 The Stabilisation and Association Council may delegate its powers to the Stabilisation and Association Committee, which is then empowered to take binding decisions.28 The Stabilisation and Association Parliamentary Committee, consisting of members of the European Parliament, on the one hand, and of members of Croatian Parliament, on the other hand, is a forum for exchanging views among the parliamentarians.29
As regards the implementation of the provisions of the Stabilisation and Association Agreement and secondary law of the Stabilisation and Association Council, an observation should be made. The nature and effect of Community law, including the case-law of the European Court of Justice, is only applicable within the Community legal order. National courts of the associated state (naturally, only before the accession to the EU) are free to interpret the provisions of association agreements within their territories and are not bound by ECJ’s decisions. This can consequently lead to different methods and prospects of interpretation and enforcement of the provisions of the Stabilisation and Association Agreement and secondary law of the Stabilisation and Association Council in the European Union and Croatia, leading to differential levels of rights of Croatian nationals in the Union and EC nationals in the Croatia.30 However, this observation should be viewed in the context of Croatian obligation to approximate its legal system with the acquis communautaire, as stipulated by the Stabilisation and Association Agreement,31 and further in the context of accession negotiations and the candidate countries’ obligation to legal
24 Article 111(1) of Croatian Stabilisation and Association Agreement. 25 Article 112 of Croatian Stabilisation and Association Agreement. 26 Case C-192/89, S.Z. Sevince v. Staatssecretaris van Justitie [1990] ECR 3461, paragraph 9. 27 Article 114(1) of Croatian Stabilisation and Association Agreement. 28 Article 114(3) of Croatian Stabilisation and Association Agreement. 29 Article 116 of Croatian Stabilisation and Association Agreement. 30 See Hartley, T.C., The Foundations of European Community Law, Oxford University Press, 1998, p. 217. For the analysis of the rights of Croatian nationals in the European Union, based on the provisions of the Stabilisation and Association Agreement, see Goldner, I.: Free Movement of Persons in the European Union Based on Europe Agreements and Stabilisation and Association Agreements (doctoral thesis), Faculty of Law, University of Zagreb, 2005. 31 See Article 69 of Croatian SAA. harmonisation with the acquis.32 Since ECJ’s case-law forms part of the acquis, one could argue that Croatian courts should feel obliged to interpret provisions of the Stabilisation and Association Agreement in line with the ECJ’s interpretation, consequently applying EC case-law on its national territory. In practice, however, there is no guarantee that Croatian courts would interpret SAA primary and secondary law identically to the ECJ, thus recognising its direct effect. In Croatia, this especially applies to the implementation of Stabilisation and Association Council’s decisions, which is subject to subsequent measures, not required under Community law, thus potentially creating an obstacle to the recognition of their direct effect by national courts.33
II) As regards competences when it comes to negotiating and concluding mixed agreement, the procedure is set by Article 300 EC. The first step are the negotiations, which are conducted by the Commission in accordance with a mandate received by the Council. The Council acts by unanimity in agreeing the mandate. The Commission is entitled to negotiate only within the framework of the directives issued by the Council and “in consultation with special committees appointed by the Council”.34 Once the negotiations have been completed, the association agreement is signed. Due to its nature as a mixed agreement, the Stabilisation and Association Agreement with Croatia had to be signed not only by the Presidency of the Council and a representative of the associated state, but also by a representative from each Member State of the Community. Once signed, the agreement must be ratified by each signatory. Again, in case of Croatian Stabilisation and Association Agreement”, this required the assent of the European Parliament35 and the ratification of all Member States in accordance with their constitutional requirements, on the one side, and the ratification by Croatia on the other. Once ratification has taken place, association agreements are formally concluded by the Council acting unanimously.36
32 On the so called “voluntary harmonisation”, i.e. a third state’s adaptation of its national laws to the Community legal system, see Evans, A., “Voluntary Harmonisation in Integration between the European Community and Eastern Europe”, 22 European Law Review, 1997, p. 201-220. See also Hillion, C., “Cases C-63/99 Secretary of State for the Home Department ex parte Wiesław Głoszczuk and Elzbieta Głoszczuk; C-235/99 Secretary of State for the Home Department ex parte Eleanora Ivanova Kondova; C-257/99 Secretary of State for the Home Department ex parte Julius Barkoci and Marcel Malik; judgments of the Full Court of 27 September 2001; Case C-268/99 Aldona Małgorzata Jany e.a v. Staatssecretaris van Justitie, judgment of the Full Court of 20 November 2001; Case C-162/00 Land Nordrhein-Westfalen v. Beata Pokrzeptowicz-Meyer, judgment of the Full Court of 29 January 2002”, 40 Common Market Law Review, 2003, p. 486. 33 For the analysis of the effects of the provisions of the Stabilisation and Association Agreement and Stabilisation and Association Council’s decisions in Croatia, which require parliamentary ratification for their implementation and thus potentially divest such decision of their direct effect, see Rodin, S., “Croatia” in: Blockmans, S. and 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, 2005, in publication. For problems of implementation of the Stabilisation and Association Agreement in Croatia, see Rodin, S., “Croatian Accession to the European Union: The Transformation of the Legal System” in: Ott, K. (ed.), Croatian Accession to the European Union: Economic and Legal Challenges”, Institute of Public Finance and Friedrich Ebert Stiftung, 2003, p. 223- 248. 34 Article 300(1) EC. 35 Article 300(3) EC. 36 Article 300(2) EC. So far, ratification of mixed agreements has been a lengthy process, due to the ratification requirement of each Member State. Both Europe Agreements37 and Stabilisation and Association Agreements took a long time to be ratified. Stabilisation and Association Agreements have, so far, been signed with Croatia and the Former Yugoslav Republic of Macedonia (FYROM). The first Agreement was signed with the Former Yugoslav Republic of Macedonia on 9 April 2001 and entered into force on 1 April 2004. The Stabilisation and Association Agreement with Croatia was signed on 29 October 2001 and has been ratified by all the 15 old Member States. However, due to the enlargement of the Union by 10 new Member States on 1 May 2004, the Stabilisation and Association Agreement could not enter into force before the new Member States acceded to it by concluding a protocol to the Agreement.38 The Stabilisation and Association Agreement with Croatia finally entered into force on 1 February 2005. This means that the period between the signing and entering into force of the Stabilisation and Association Agreement with Croatia has been the longest, in comparison to 10 Europe Agreements and the Stabilisation and Association Agreement with FYROM.
Due to the time-consuming ratification process of mixed agreements, a practice has been established whereas interim agreements, containing trade provisions identical to those contained in the main association agreement, are set in force in the period between the signing and entering into force of the association agreement. Interim agreements are concluded under Article 133 EC between the Community and the associate-to-be and can, thus, come into force much faster than mixed agreements, since no ratification by Member States is needed.39
37 The first two Europe Agreements with Hungary and Poland took more than two years to be ratified. Both Europe Agreements were signed on 16 December 1991 and entered into force on 1February 1994. Subsequent ratification of Europe Agreements with Romania, Bulgaria, the Czech Republic and Slovakia took a little bit less than two years. Europe Agreement with Romania was signed on 1 February 1993 and entered into force on 1 February 1995. Europe Agreement with Bulgaria was signed on 8 March 1993 and entered into force on 1 February 1995. Europe Agreements with the Czech Republic and Slovakia were signed on 4 October 1993 and, likewise, entered into force on 1 February 1995. Ratification of Europe Agreements with the Baltic States and Slovenia took even longer. Europe Agreements with Estonia, Latvia and Lithuania were signed on 12 June 1995 and entered into force on 1 February 1998, while Europe Agreement with Slovenia was signed on 10 June 1996 and entered into force 1 February 1999. It should be noted that entry into force normally takes place within two months after the ratification process has been completed. 38 Article 6(2) of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, OJ 2003, L 326.
39 In case of both Europe Agreements and Stabilisation and Association Agreements, the Community signed interim agreements with the associates-to-be, which were in force until coming into force of the association agreement. Interim agreements were concluded with the following Europe Agreement countries: Poland, Hungary, the Czech Republic, Slovakia, Romania, Bulgaria and Slovenia. Free trade agreements with the three Baltic states had been concluded prior to the signing of Europe Agreements so there was no need for interim agreements. Interim agreements were concluded with Croatia and Macedonia as the only two countries that have, so far, signed Stabilisation and Association Agreements. 7. Concerning the Third-Pillar agreements (Article 24 TEU) with the United States on extradition and mutual legal assistance (OJ 2003 L 181/27 and L/181/34): What is the current status of ratification in the Member States? What national procedures are being followed? Are there any official statements on the nature of those procedures and of the agreements themselves? Are the agreements considered to be EU agreements or Member State agreements?
Although Croatia is not a Member State, a general policy was defined at Parliamentary level and enjoying a broad and permissive consensus, that Croatia's external policy will be strongly aligned with the one of the EU. An example of such alignment is a well established practice of aligning with the Common Positions enacted within framework of Common Foreign and Security Policy. Namely, starting from the Thessaloniki Council of June 19 and 20, 2003, the EU is inviting Croatia and other States of the Stabilization and Association Process to align with Common Positions 40 and Croatia joins regularly.
8. Concerning the bridge between the Common Foreign and Security Policy and the EC Treaty in Articles 301 and 60 EC: What views and positions are there on what the Court of First Instance decided in Yusuf and Kádi? Are there any concerns about the extension of EC competence to sanctions against individuals? Is it appropriate for Article 308 EC to be used for the pursuit of CFSP objectives?
In Yusuf and Kadi, the Court of First Instance had to decide on claims of applicants in which they challenged the regulation which provided the basis for freezing their funds and the regulation that included their name on the list of persons whose funds have to be frozen. Here, the use of a combined legal basis of Article 301 and 60 EC with Article 308 EC, for the purpose of fighting against international terrorism and, in that connection, imposing sanctions against individuals, can be viewed as controversial. It moves further the limits of the Court’s jurisdiction and sets grounds for future consitutionalisation of CFSP. The use of Article 308 EC for the fight against international terrorism is questionable and the extension of EC competence to sanctions against individuals worrying.
Chapter 2 – Mixed agreements and international responsibility
9. The Mox Plant case is an example of two Member States engaging in international litigation under a mixed agreement (in casu the Convention on the Law of the Sea). Are there any other such cases, which have either materialised in actual litigation or where litigation was contemplated? If so, please provide details about any official national or EC positions; about whether the EC was notified; about any official discussions which took place; about any relevant outcomes of the litigation.
Croatian rapporteurs are not acquainted with such a case.
40 The EU will invite, as appropriate, the SAP countries to align themselves with EU demarches, declarations and common positions on CFSP issues. General Affairs & External Relations Council (GAERC), 16 June 2003: Western Balkans - Council Conclusions 11. Are there any cases of Member States having engaged in international litigation against a non-Member State under a mixed agreement? If so, was the EC notified? Were there any official discussions? Idem regarding litigation by the EC under a mixed agreement. Were any of the Member States involved in an individual capacity?
There are no such cases involving Croatia as a non-Member State.
12. Within the WTO: Which cases have been brought against Member States (including cases which did not (yet) go beyond the level of consultation)? What was the EC’s reaction? What was the reaction of the Member State(s) concerned?
There is one case that has been brought against Croatia where a consultation has been requested, and it has been successfully completed. Hungary requested consultations with Croatia on 9 July 2003 on the subject of the import prohibitions applied to live animals and meat products, which are based on the possible transmission of Transmissible Spongiform Encephalopathy (TSE).
According to Hungary, the import measure was introduced by Croatia on 5 June 2003 without notification to the SPS Committee. In Hungary’s view, the measure at issue was inconsistent with Croatia’s obligations under the WTO provisions. The measure was alleged to aim at the prevention of the spread of the BSE disease. Apart from ruminants, it applied to all other animals of any economic significance such as live pigs, poultry and fish and products thereof. The measure prohibited imports unless there was a prohibition in the exporting country on feeding animals with feed containing animal protein (fish meal was also not allowed to be used under all circumstances). All EU Member States had a measure banning feed containing animal protein. However, Hungary was at that time still not a Member State and had not yet brought such a measure.
After the consultations between the parties, Hungary imposed the ban on feeding animals with feed containing animal protein as of 24 September 2003 and Croatia brought a new measure on 8 September 2003 stating that the ban on imports from Hungary shall not encompass pigs, poultry and fish, whose feeding had started after 24 September 2003, and products thereof. Therefore the consultations were successful and the dispute did not enter a new phase before the WTO bodies.
14. The International Law Commission is studying issues of international responsibility of international organizations, including questions of responsibility in the case of EC mixed agreements. What are the national and EC positions? Are they coordinated?
Croatia has not yet taken a position on this matter.
Chapter 3 – Legal effects of international law
15. Is there national case-law on mixed agreements which did not result in a reference to the Court of Justice? Is there national case-law on GATS or on TRIPs? Is there national case-law on pure EC agreements which did not result in a reference to the Court of Justice? If yes, please give a short summary.
There is no national case-law on mixed agreements which did not result in a reference to the Court of Justice.
As regards national case-law connected to GATS, there is a case pending before the Commercial Court in Zagreb involving Croatian Bar Association as the plaintiff and a law society from Vienna as the defendant. Croatian Bar Association initiated the proceeding and challenged the right of the Austrian law society to register its branch in Croatia for the purpose of providing international legal services herein. In the meantime the Austrian law society altered its initial registration and is asking to register its branch for the purpose of providing consultation services. The case has still not been decided.
16. Are there currently enforcement actions by the Commission against Member States (Article 226 EC) for failure to comply with international agreements binding on the EC?
Croatia is not an EU Member State.
17. Is there national case-law on the domestic legal effect of WTO law in areas which are within national competence (see Christian Dior)? What views are there on the Court’s jurisdiction to deal with questions of interpretation of WTO law (Hermès, Christian Dior, Schieving-Nijstad)? What views are there on the impossibility for Member States to rely on WTO law in an action for annulment (Portugal v Council)? What views are there on the recent case-law concerning the effect of WTO law (Van Parys, Chiquita, xxx)?
See answer to question 15.
18. What views are there on the recent case-law by the Court of Justice on the direct effect of association and cooperation agreements (e.g. Simutenkov, Panayotova, Deutscher Handballbund, Kondova)? Have these cases given rise to any specific issues or problems at national or Community level?
As regards direct effect of association agreements, the European Court of Justice established a general rule indicating that it is only where an international agreement does not itself settle the issue of the effects of its provision, it is to be decided by the courts.41 In case the agreement does not settle the issue itself, the Court, nevertheless, decided that provisions of international agreements can be directly effective under certain circumstances. It stated that “a provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable42 when, regard being had to its wording and the purpose and nature of the Agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure” 41 Case 104/81, Hauptzollamt Mainz v. Kupferberg [1982] ECR 3641, paragraph 17. 42 The term “directly applicable” is interchangeable with the term “directly effective” in this context. (emphases added).43 The citation indicates that the requirements for direct effect of international agreements turns out to be broader than the ones applicable to EC Treaty provisions.44 Apart from the legal criteria of clarity, unambiguity and unconditionality, the Court determined additional policy requirements that need to be fulfilled in order for a provision from an international agreement to be directly effective. Thus, regard has to be had to the wording, purpose and nature of the agreement itself.45 Therefore, provisions of association agreements are not to be given the same wide and policy-oriented interpretation as is given to the EC Treaty,46 even if the agreement reproduces almost exactly the wording of a provision in the EC Treaty.47
In the six judgements, Gloszczuk, Kondova, Barkoci and Malik, Jany, Pokrzeptowicz- Meyer and Panayotova involving Bulgarian, Czech, Polish and Slovak Europe Agreements, the Court declared that the provision on freedom of self-employment of nationals from the associated state and the one stipulating the principle of non- discrimination of workers from the associated state are directly effective and therefore can challenge national law of Member States in case of inconsistency. These judgements are in line with the Court’s recognition of direct effect in a number of provisions of other association agreements concluded between the Community and third countries,48 and provisions of secondary law adopted by institutions established by such agreements.49 In its judgments on Europe Agreements’ provisions on establishment, the ECJ came to the conclusion that Member States’ national rules regarding entry, stay and establishment of nationals from the associated state are “expressly subject to the condition of not nullifying or impairing the benefits” accruing to the associated states’ nationals. The Court continued by stating that national immigration rules must be “appropriate for achieving the objective in view” and they cannot “constitute, in regard to that objective, measures which would strike at the very substance of the rights”.50 As can be seen in these judgements, the Court 43 12/86, Demirel v. Stadt Schwäbisch Gmünd [1987] ECR 3719, paragraph 14. 44 The principle of direct effect of Treaty provisions was introduced by case 26/62 NV Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1. 45 See also case 21-24/72 International Fruit Company NV v. Produktschap voor Groenten en Fruit [1972] ECR 1219, paragraph 20; case 270/80, Polydor Ltd. and RSO Records Inc. v. Halequin Record Shops Ltd. and Simons Records Ltd. [1982] ECR 329, paragraph 8; case 104/81, Hauptzollamt Mainz v. Kupferberg [1982] ECR 3641, paragraph 23. 46 Hartley, T.C., The Foundations of European Community Law, Oxford University Press, 1998, p. 217. 47 Case 270/80, Polydor Ltd. and RSO Records Inc. v. Halequin Record Shops Ltd. and Simons Records Ltd. [1982] ECR 329. 48 E.g. cases C-416/96, El Yassini v. Home Secretary [1999] ECR I-1209 on the EEC-Morocco Cooperation Agreement; C-37/98, R v. SSHD, ex parte Abdulnasir Savas [2000] ECR I-2927 on EC- Turkey association agreement. 49 E.g. cases C-192/89, Sevince v. Staatsecretaris van Justitie [1990] ECR I-3461; 12/86, Demirel v. Stadt Schwäbisch Gmünd [1987] ECR 3719. 50 Case C-63/99, The Queen v. Secretary of State for the Home Department ex parte Wieslaw Gloszczuk and Elzbieta Gloszczuk [2001] ECR I-06369 paragraphs 54 and 56; Case C-235/99, Secretary of State for the Home Department ex parte Eleanora Ivanova Kondova [2001] ECR I-06427, paragraphs 59, 87 and 88; Case C-257/99, Secretary of Statefor the Home Department ex parte Julius Barkoci and Marcel Malik [2001] ECR I-06557, paragraph 59. See also Case C-268/99 Aldona Malgorzata Jany e.a. v. Staatssecretaris van Justitie [2001] ECR I-08615, paragraph 28; Case C- 327/02, Lili Panayotova and Others v. Minister voor Vreemdelingenzaken en Integratie [2004], paragraph 20. was willing to protect rights granted to third country nationals by association agreements. It preserved Member States’ sovereignty in the field of immigration law only as long as national rules were not nullifying or impairing the benefits granted by the association agreements. So far, the Court has not addressed this issue with regard to Stabilisation and Association Agreements but there is no reason to doubt that it would reach the same conclusion in its analysis.
In Kolpak and in Simutenkov the Court examined the issue of horizontal direct effect of a provision of association agreements. The crucial question before the Court in Kolpak was whether the first indent of Article 38(1) of Slovakian Europe Agreement applied to a rule laid down by a sports federation, i.e. whether it had horizontal direct effect. The Court first confirmed its rule of horizontal direct effect of EC Treaty provision on equal treatment of workers, defined in Bosman, by repeating that the prohibition of discrimination based on nationality between workers of Member States, as laid down in Article 39(2) EC, applies to rules of sporting associations.51 It then examined whether its interpretation of Article 39(2) EC may be transposed to the situation in Kolpak. The Court relied on Pokrzeptowicz-Meyer in reaffirming its position that Article 39(2) EC and the first indent of Article 37(1) of Polish Europe Agreement, when prohibiting discrimination of workers as regards working conditions, have the same meaning and should be interpreted the same way. Could the same parallel be drawn between Article 39(2) EC and the relevant provision of Slovakian Europe Agreement? The Court answered this question in the positive. Consequently, it decided that the rule of identical interpretation of EC Treaty and Polish Europe Agreement provision on equal treatment of workers from Pokrzeptowicz-Meyer should be extended to Slovakian Europe Agreement. The Court, thus, concluded that the interpretation of Article 39(2) EC adopted in Bosman may be transposed to the first indent of Article 38(1) of Slovakian Europe Agreement. This meant that the relevant provision had horizontal direct effect and could apply to rules drawn up by a sports federation.52
Based on the Kolpak, the Court reached the same conclusion in Simutenkov, the case based on Communities-Russia Partnership Agreement. The fact that the Communities Russia Agreement is limited to establishing a partnership, and not an association, between the two, did not divest the relevant provision of its direct effect.
Prior to the judgments in Kolpak and Simutenkov, some commentators argued that the ECJ would be reluctant to grant nationals of the associated state, or any other third country nationals for that matter, a right initially intended to enforce Member States’ obligations to one another and promote uniformity of EC law.53 Allowing EA nationals to invoke a right against EC nationals as private parties might have seemed politically difficult to accept. However, in Kolpak and Simutenkov another stream of argumentation, giving priority to Member States’ respect for the commitments of the Community arising from international agreements, must have prevailed. Additional consideration that Community agreements form an integral part of Community law and their effects should consequently be the same as of Community treaties, must have been taken into account.54 However, it seems that the crucial argument supporting the judgment in Kolpak must have been the perception of Europe
51 Paragraph 31 of Deutscher Handballbund. 52 Paragraph 37 of Deutscher Handballbund. 53 Peers, S., “Towards equality: Actual and potential rights of third country nationals in the European Union”, 33 Common Market Law Review, 1996, p. 30. Agreements as pre-accession instruments. The judgment is based on the understanding that the Polydor principle does not necessarily lead to a differential interpretation of the EC Treaty and provisions of association agreements. Kolpak can, thus, be perceived as a result of the victory of the integrationist approach towards Europe Agreements and of effectiveness and uniformity of EC law, which accepts a politically sensitive situation where a private EC employer can be sued by a national from an associated state. Considering the pre-accession orientation of Stabilisation and Association Agreements and the same wording used therein, there are strong arguments to believe that the Court would follow the same path in case of nationals from the Stabilisation and Association state and recognise horizontal direct effect of relevant provisions. On the other hand, Simutenkov verifies that the Court is willing to follow the same reasoning in cases involving associated states that are not negotiating its accession to the Union, but have only entered into partnership agreements with the Community.
19. In Yusuf and Kádi the Court of First Instance declined to review an EC Regulation based on a UN Security Council Resolution, because of the binding nature of UN law. Is there national case-law on the domestic legal effect of Security Council Resolutions? What views are there on these judgments?
Croatian national rapporteurs are not acquainted with any national case-law in Croatia on domestic legal effects of Security Council Resolutions. Generally speaking, Croatian courts are not accustomed to using international agreements as the legal basis for their judgements, despite the fact that they should do that, but instead rely on provisions of domestic laws, that repeat what has been stipulated by international agreements. Such practice is a clear departure from Article 140 of Croatian Constitution which defines Croatia as a monist state by rendering all ratified international agreements part of national law.
20. What are considered to be the legal effects of the extradition and mutual legal assistance agreements with the US? Are the Member States (re)negotiating bilateral agreements? How do such negotiations or agreements relate to the EU-US agreements?
Croatia has an extradition and mutual legal assistance agreement with the USA (succession from former Yugoslavia). However, no renegotiation of this agreement has taken place up till now.
54 Macleod, I., Hendry, I.D. and Hyett, S., The External Relations of the European Communities, Oxford University Press, 1996, p. 136-137.