The Court of Justice of the European Union does not have jurisdiction to rule on an international boundary dispute that falls outside the scope of EU law, Advocate General Priit Pikamäe stated in his Opinion delivered on Wednesday 11 December (Case C-457/18).
The settlement of the boundary dispute between Slovenia and Croatia was one of the political conditions for Croatia's accession to the EU. Croatia challenges the validity of the award on the border between the two countries made by the international arbitral tribunal in June 2017.
Slovenia brought infringement proceedings under Article 259 of the TFEU Treaty (see EUROPE 11983/18). It claims, in particular, that by failing to honour the commitment made during the process of accession to the EU to comply with the forthcoming arbitration award, Croatia is refusing to respect the value of the rule of law and the principles of sincere cooperation and res judicata.
Ljubljana also submits that Croatia is preventing it from fully exercising its sovereignty throughout its mainland and maritime territory. By doing so, Croatia is in breach of the duty of sincere cooperation and is jeopardising the attainment of the objectives of the EU. Finally, Slovenia claims that Zagreb is preventing it from applying EU secondary law, in particular in relation to the common fisheries policy, border control and maritime spatial planning.
Croatia, on the other hand, considers that the action brought by Slovenia is inadmissible.
The Advocate General decided it is necessary to examine the relationship of the arbitration agreement and the arbitration award in question with EU law and to determine whether the EU is bound by them. In his Opinion, the Advocate General proposes that the Court of Justice declare that it does not have jurisdiction to hear the action brought by Slovenia.
The Union is bound by international law through the international conventions concluded by the EU pursuant to the provisions of the Treaties, by international conventions where the EU assumes powers previously exercised by the Member States, and by rules of customary international law when the EU exercises its powers. However, according to Mr Pikamäe, an arbitration agreement concerning the delimitation of a national territory does not fall within these cases and, therefore, does not bind the Union.
Regarding the alleged infringement of the value of the rule of law and of the principle of sincere cooperation, the Advocate General is of the view that those matters are merely ancillary to the issue of delimitation of the land and maritime boundaries between Slovenia and Croatia.
As for the alleged failure to fulfil obligations in relation to the common fisheries policy, border control and maritime spatial planning, the Advocate General observes that Slovenia is relying on the premiss that the boundary has been determined by the arbitration award. However, this award has not been implemented in the relations between the two Member States concerned.
Mr Pikamäe concludes that, from the point of view of Union law, the boundary between these two Member States has not been established. He infers that Slovenia is seeking, by implication, to have the arbitration award implemented, which falls outside the EU’s sphere of competence.
See the conclusions: https://bit.ly/2LJNH9S (Original version in French by Mathieu Bion)