CONSTITUTIONAL CHANGES AND ENFORCEMENT OF SAA IN THE WESTERN BALKANS: COMPARATIVE EXPERIENCES WITH THE EUROPE AGREEMENTS

Apstrakt

The impact of implementing and enforcing EU law is crucial on the domestic legal system of a (potential) candidate country like Serbia. Judicial capacity concerns not only an independent judiciary, trained and able to apply EU law and protect before them rights derived from it but also the existence of an efficient functioning court system (avoidance of excessive delays, intra-system computerization, and elimination of case backlogs in specific courts), with adequate resources and professional staff. For such reasons and as already outlined in this work, it may be necessary to consider the consolidation and deepening of the legal foundations of Serbia-EU relations by adding some judicial dynamic to the development of these links. In the SAA, unlike the EAs, the provision similar to Article 4(3) TEU in Article 129(1) SAA, at the very least could engender a general obligation on Serbian courts to interpret domestic harmonised law (as far as practicable) in concordance with that of EU law and the interpretations given to it by the ECJ and GC. Such interpretations become even more authoritative then through the express provisions of the SAA on intellectual property rights and competition law, despite the unlimited temporal nature of the requirement: in other words, Serbian courts have to match their interpretations to future and continuing developments in the European courts’ decision-making. No doubt, were the Serbian Constitutional Court to receive a petition containing a germ of SAA-EU law in it, it might feel able to follow its CEEC counterparts and rule on a "Euro-friendly" interpretation of national law, before accession, using as a basis for such approach Serbia’s "commitment to European principles and values" from Article 1 of the 2006 Constitution and from Article 16(2), "ratified international treaties shall be an integral part of the legal system in the Republic of Serbia and applied directly." Nevertheless, as the Polish Constitutional Tribunal considered, there would be limits to this type of interpretation, viz., Article 194(2) of the Serbian Constitution (like Article 8 of the Polish Constitution) provides: "The Constitution shall be the supreme legal act of the Republic of Serbia." In addition, it might be possible to follow the example of the Hungarian Constitutional Court and its understanding of the relationship between a European interpretation of national law and the limits on such interpretation found under Constitution Article 2 on a democratic state under the rule of law and popular sovereignty. These limits to a Euro-friendly interpretation of national law by the Serbian courts could be based on the 2006 Constitution Articles 1-3. It might also be that the Serbian Constitutional Court would be called upon to rule on the constitutionality of provisions of the SAA, under Constitution Article 167(2), for which clearly Constitution Article 16(3) would form a basis: "Ratified international treaties must be in accordance with the Constitution." To what extent might the SAA be unconstitutional? At least one problematic issue has been avoided: unlike Slovenia, the 2006 Constitution (Article 85) allows foreign natural and legal entities to obtain real property, according to the law or international treaty. In fact, the Serbian Constitution also appears to pre-empt concerns of equal treatment of EU natural or legal persons under the SAA. In dealing with the status of foreign nationals, Article 17 provides: "Pursuant to international treaties, foreign nationals in the Republic of Serbia shall have all rights guaranteed by the Constitution and law with the exception of rights to which only the citizens of the Republic of Serbia are entitled under the Constitution and law." Such approach is reinforced by the equality clause, in Article 18, which prohibits, inter alia, direct and indirect discrimination on grounds of national origin and proclaims equal rights to legal protection which latter right is reinforced by Article 36 that adds the right to a legal remedy. These provisions together reflect the contents of Article 126 SAA. With regard to competition, the Serbian Constitution under Article 84(2) has gone so far as to provide express prohibition of acts that are contrary to the law and restrict free competition by creating or abusing a monopolistic or, and under Article 84(4) ensures equal treatment between Serbian and foreign persons, whether legal or natural, on the market. These provisions of themselves might not be sufficient to alleviate the possibility of a Hungarian-style scenario occurring in respect of the application of the EU competition acquis, as applied and developed by the Commission and the European Courts, through Article 73(2) SAA. But this provision and those in Articles 72(1), 126 and 129(1) SAA (the latter being a so-called "Union loyalty-lite" clause) should be further read with the 2006 Constitution which provides under Article 142(2) that courts shall perform their duties in accordance inter alia with the Constitution, law and ratified international contracts, and under Article 145(2) that their decisions are based on the Constitution and law, ratified international treaty, and regulation passed on the basis of the law. It could be argued, at least from an EU law perspective, that the Serbian courts are bound (in competition cases) to use Commission Notices and Decisions and the rulings of the European Courts, whenever decided, in determining cases before them. With the coming into force of the SAA, the next few years will consequently prove to be vital in ensuring the protection of rights derived from EU law in Serbia, particularly though not exclusively those in the field of intellectual property rights and competition.