ISSN: 2560-1601

Vol. 10, No. 4 (SI)

September 2018

Slovenia External Relations briefing: Controversy about the position statement on -Croatia border dispute arbitration Helena Motoh

1052 Budapest Petőfi Sándor utca 11.

+36 1 5858 690 Kiadó: Kína-KKE Intézet Nonprofit Kft. [email protected] Szerkesztésért felelős személy: Chen Xin Kiadásért felelős személy: Huang Ping china-cee.eu Controversy about the position statement on Slovenia-Croatia border dispute arbitration

Following Slovenian request to the European Commission to assist Slovenia in the legal procedure against Croatia for not implementing the decision of the arbitration court (of June 2017), European Commission did not issue a reply in the prescribed time of three months. As was uncovered by German newspaper Spiegel, there was a prepared opinion statement of the EC legal service asking European to do so and confirming that Slovenia has valid legal grounds for the lawsuit. The fact that the document was ignored by the EC President Juncker who refused to put it on the agenda, provoked a lot of criticism on the Slovenian side. Recently a letter was sent by four Slovenian MEP to demand the solution to this issue.

Background Despite the arbitration court decision on the demarcation of disputed Slovenian-Croatian border territories on June 29th 2017 and the implementation of the agreement by Slovenia in the prescribed time frame (by December 29th 2017), the issue between Slovenia and Croatia is not yet solved. Because there was an unauthorized leaking of classified information on the side of Slovenian representatives, Croatian side announced that they don’t recognize the validity of the arbitration court procedure anymore, and they withdrew from it. When the decision was issued, Croatia refused to implement it. After one side implemented the agreement and the other did not, conflicts started in the contested Bay of Piran between the border guards and fishermen. In a growing number of incidents Slovenia fishermen got fines from Croatian authorities for having allegedly crossed the demarcation line. Slovenian government attempted to undertake the same procedures for the Croatian fishermen who fished according to the demarcation line recognized by Croatia.

1 Due to unsuccessful appeals to Croatia to finally implement the arbitration court agreement, Slovenia undertook a process of legal appeal. Just before he resigned, Prime Minister Cerar and his government voted for to send a letter of appeal to the European Comission, referring to the Article 259 of the Lisbon Treaty. What this Article prescribes is that a Member State can bring the allegation that another Member State failed to fulfill an obligation under the Treaties. Before that action is taken, the Member State should bring the matter before the Commission which shall deliver a reasoned opinion after the States in conflict upon considering the oral and written opinions of the two states. If the Commission fails to do so in three months, this does not prevent the matter from being brought to court. The letter of appeal was handed to the representative of the President of EC by Slovenian ambassador at EU on March 16th 2018. European Commission expressed its will to help solve the issue and called Croatia to present its case as well which was done on April 17, while the hearing of the representatives of both countries took place on May 2.

Spiegel disclosure On September 14th the German newspaper Spiegel published an article disclosing an 8-pages long position statement of the EC legal staff which mostly confirmed the arguments of Slovenia that Croatia is breaking the law of EU. Firstly the opinion confirmed that »the outcome of the arbitration procedure must be respected by the EU, and provisions of EU lwa must be interpreted in the light of it. The opinion statement was signed by the Deputy Director-General of the European Commission Legal Service, Karen Banks and addressed to the Head of the Cabinet of the president of European Commission, Clara Martinez Alberola. After stating that most of the claims are valid, the opinion suggests to the EC that the reasoned opinion should be adopted according to the Article 259 and reminds that this was to be done by June 18th. Four months after the legal opinion was submitted, European Commission failed to do any steps to solve the problem.

2 As Spiegel commentary hints, this could be an initiative of the President of EC Jean-Claude Juncker himself and was due to an alliance and a good relationship he has with Andrej Plenković, the Prime Minister of Croatia and President of the right-wing HDZ (Croatian Democratic Union), which is a member of the same European People's Party as Juncker. Despite his initial support of the arbitration procedure and his claims that the implementation of it is a matter of EU and not just of bilateral relevance, still no steps have been taken to implement the fairly straightforward legal judgment expressed by the legal service. Some criticism followed of the role of the Slovenian Commissioner for Transport, Violeta Bulc. On September 19th, she responded by rejecting any criticism related to the arbitration agreement with stressing that she did what was in her capacities, namely, to advocate for the Slovenian interests and to explain the Slovenian view on the matter, two times on the meeting of the Commissioners. She also explained what was the fate of the legal opinion document, saying that this document was never put as material on the meeting of the Commissioners, because President of EC Jean-Claude Juncker never put this particular topic on the agenda. She confirmed that there were rumors about this document and its content, but officially the Commissioners did to have an opportunity to debate it. She did not want to comment on the allegations that Juncker kept the document away from the Commissioners due to his allegiance with a fellow European People's Party member Andrej Plenković, saying only that the European elections are approaching and that the commissioners belong to different political groups. The response of European Commission was that these are internal documents and referred to the June statement of the Commission Chief Spokesperson of EC, Margaritis Schinas, who said that EC will not issue an opinion related to the Slovenian lawsuit against Croatia for breaking EU legislation and that the two countries shall find their own solution, while the commission remains willing to mitigate. Slovenian President Borut Pahor

3 responded to the EC situation saying that the decision that EC made for »political reasons« is not a good message for the future potential agreements on the borders in the Western Balkans region. This will become an issue after several other candidate countries from the former Yugoslavia strive for membership. Criticism also followed from the side of the Speaker of the National Assembly in Slovenia, Dejan Židan, who said that the political intrigue is endangering the rule of law which is the very foundation of the EU.

Letter to the President of European Commission On September 27th, four Slovenian Members of the European Parliament wrote a letter to Juncker, demanding that the European Commission demands of Croatia the respect of the arbitration court decision. The initiatior of this act was Igor Šoltes (Group of the Greens/European Free Alliance). The letter was signed also by three other Slovenian Members of the European Parliament. Two of them were Tanja Fajon (Social Democrats/Progressive Alliance of Socialists and Democrats), Ivo Vajgl (DeSUS/Group of the Alliance of Liberals and Democrats for Europe). They were joined surprisingly also by one member of the European People's Party, Franc Bogovič from Slovenian People's Party. Other Slovenian Members of European Parliament, who are all members of European People's Party, Patricija Šulin, Romana Tomc and Milan Zver from Slovenian Democratic Party and from New Slovenia Party, refused to sign the letter. The Slovenian Democratic Party MEPs claimed that the letter to Juncker is not addressed correctly and should be directed at Frans Timmermans (from the Party of European Socialists). The letter addresses the issues of intransparent functioning of the European Commission, disrespect of the rule of law and inactivity of the European Commission int he case of the arbitration court decision on the border question between Slovenia and Croatia. They insist that Juncker must »clearly demand of Croatia to respect the rule of law and implement the arbitration agreement without further delay. They especially express disappointment with the EC

4 President for having neglected the basic premises of the European Union by ignoring the position statement of EC's own legal service. As in the case of Slovenian President Pahor's statement on the issue, they also point at the importance of a correct management of this issue from the side of European Commission in order not to set a problematic example to the potential future border disputes among the membership candidates in the Western Balkans.

Conclusion With the upcoming European Parliament elections in May 2019, it can be expected that the issue of the implementation of the arbitration court about the border between Slovenia and Croatia will become more and more politicized along the European parties' loyalty lines. With Juncker openly supporting his fellow EPP members from Croatia, Slovenian members of EPP (except for Bogovič) also keep a low profile, making Slovenian response less unified and perhaps also less efficient. As of now, Slovenian government will go forward with the legal dispute about the implementation, most probably without the support of the European Commission.

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