Court of Justice of the European Union Advocate General, Priit Pikamae, believes the Court does not have jurisdiction in Slovenia's case against Croatia over alleged infringements of EU law caused by the non-enforcement of a border arbitration award, it was said in Luxembourg on Wednesday.
Pikamae's opinion and the Court's decision, expected next spring, do not refer to the content of Slovenia's objections, only to whether the Court of Justice has jurisdiction in the matter.
The advocates general's opinion is not binding on the Court of Justice. The advocate general does not represent the interests of either the parties or the public, only giving an expert opinion on relevant legal matters in complete independence.
Based on the advocate general's opinion, it is difficult to predict the Court's judgment. The practice to date shows that in cases before the Grand Chamber, as in Slovenia's action against Croatia, the Court follows the advocate general's opinion in about 50% of the cases.
Slovenia brought an action against Croatia under Article 259 of the Treaty on the Functioning of the European Union, moving that the Court of Justice establish that Croatia is in breach of Articles 2 and 4 of the Treaty which concern respect for the rule of law and loyal cooperation between member states.
Slovenia also submits that Croatia is in breach of the regulation on the common fisheries policy, border control and maritime spatial planning.
Croatia, on the other hand, submits that the Court of Justice has no jurisdiction to rule in the present case given that it is not really about the application and interpretation of EU law. According to Croatia, the dispute in this case refers to the interpretation and application of international law and therefore it should be resolved by applying international law and by means envisaged for the peaceful resolution of disputes, including negotiations.
The Court of Justice did not discuss the content of Slovenia's objections. Only an oral hearing on jurisdiction was held on July 8. If the Court finds that it is not competent, the procedure is automatically over. In case it finds that it is competent, there will be a hearing on the content, followed by a judgment.
At the July hearing, Croatia argued that the Court has no jurisdiction in the case because the border between the two countries is a matter of international and not national law, and that the point of the dispute is border demarcation and not the interpretation of EU law. According to Croatia, the only legal ground for this dispute before the Court of Justice could be Article 273 of the Treaty on the Functioning of the EU.
Article 273 gives member states the possibility to bring disputes before the Court of Justice in cases which, in the strict sense, do not refer to EU law but are important for the member states and the EU in a wider context. If such a dispute does not concern EU law, the Court of Justice cannot have jurisdiction, only if the dispute is submitted to it under a special agreement between the parties.
Slovenia, on the other hand, claims that the arbitration award is a fact, that it defines the border and that only its implementation is negotiable.