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STA, 11 December 2019 – The ECJ Advocate General Priit Pikamäe has stated that the EU Court of Justice is not competent to rule Slovenia's case against Croatia over its failure to implement the border arbitration award, having assessed that the case is an international border dispute outside the scope of EU law and thus outside the court's jurisdiction.

"The infringements of EU law of which Slovenia accuses Croatia are ancillary to the issue of determining the boundary between those two states, which is a matter of public international law," the advocate general stated in his opinion, released by the court on Wednesday.

The opinion is not binding on the court. Available statistics show that the court's Grand Chamber, which is deliberating on Slovenia's case, agrees with the advocate general's opinion in about half of the cases.

In its case Slovenia argues that Croatia infringes several articles of EU law by refusing to implement the award as declared by the mutually appointed arbitration tribunal in June 2017.

Slovenia alleges Croatia's infringements of the principles of the rule of law and sincere cooperation, regulation on the Common Fisheries Policy, Schengen rules governing the movement of persons across borders and the directive establishing a framework for maritime spatial planning.

Slovenia has been insisting that its legal action against Croatia is not about the border dispute, which has been resolved through the arbitration award, which is final.

In his opinion, Pikamäe notes that the purpose of an action for failure to fulfil obligations under Article 259 of Treaty on the Functioning of the EU is to obtain a declaration that the conduct of a member state is in breach of EU law and to terminate that conduct.

The advocate general notes that the situations in which the EU is bound by international law are well-established; "it is bound by 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".

"International conventions that do not fall within those categories are not acts of the EU and do not bind it," the advocate general finds.

Relying on the court's case law, he points out that "the territorial scope of the Treaties is an objective fact predetermined by the member states which the EU has to accept".

Consequently, he is of the opinion that "delimitation of national territory does not fall within the sphere of competence of the EU or, therefore, of the Court of Justice".

As regards the relationship between, on the one hand, the arbitration agreement and the arbitration award and, on the other hand, EU law, the advocate general says that it does not fall within any of the situations in which the EU is bound by international law.

Concerning the alleged infringement of the value of the rule of law and of the principle of sincere cooperation, he finds that those "are merely ancillary to the issue of delimitation of the land and maritime boundaries between the two member states concerned and that, accordingly, the Court does not have jurisdiction to hear and determine those complaints".

Citing case law, the advocate says that the principle of sincere cooperation has constituted an independent basis for obligations in cases where the EU was party to a mixed agreement or where the obligations being fulfilled arose under the EU Treaties. "However, the conduct at issue does not fall within either of those two situations."

Regarding the alleged failure to fulfil obligations related to the common fisheries policy, border control and maritime spatial planning, Pikamäe says that "Slovenia is relying on the premiss that the boundary has been determined by the arbitration award.

"However (...) the award has not been implemented in the relations between the two member states concerned," so the advocate general "is of the opinion that, from an EU law perspective, the boundary between those two member states has not been established".

Hence, Pikamäe infers that "Slovenia is seeking, by implication, to have the arbitration award implemented, which falls outside the EU's sphere of competence".

His conclusion is that "the alleged infringements of EU law are ancillary to the issue of determining the boundary between Croatia and Slovenia. Determining that boundary is, by its very nature, a matter of public international law in respect of which the Court does not have jurisdiction."

In releasing the advocate general's opinion, the court made a point of noting that the opinion is not binding on the Court of Justice.

"It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible."

Now the court's judges will start deliberations on the admissibility of the case. "Judgement will be given at a later date," the release said. Unofficially, it is expected in the first quarter of 2020.

If the court finds the case outside its jurisdiction, the case is closed. However, if it finds the case admissible or partly admissible, another hearing will follow, followed by another opinion of the advocate general and another judgement.

Slovenia rejects Advocate General's opinion

STA, 11 December 2019 - Slovenia did not expect the EU Court of Justice (EJC) advocate general would deem the country's lawsuit against Croatia over EU law violation inadmissible. Foreign Minister Miro Cerar believes the advocate general's reasoning is weak, indicating that the court's decision might be different.

President Borut Pahor said the opinion of the advocate general does not change the fact the border between Slovenia and Croatia had been drawn by a Hague-based international arbitration tribunal.

Meanwhile, Prime Minister Marjan Šarec said that Slovenia remained determined to implement the arbitration decision and that bilateral talks or returning to square one was out of the question.

The Foreign Ministry stressed in a release that Advocate General Priit Pikamäe's position was not binding on the court, noting the procedure at the ECJ would not affect the fact the border arbitration decision from 2017 was valid and binding for Slovenia and Croatia.

Cerar, who called a news conference to comment on the opinion, said the court had so far decided in only five cases brought against a fellow member state and that the court followed the advocate's position in only three of the cases.

He added that the decision had "absolutely no effect on the validity of the arbitration award" and that arguments were on Slovenia's side.

Cerar also highlighted the fact that nobody had ever said Croatia did not have to implement the arbitration award, while many countries had urged it to do so.

When asked whether Slovenia had plan B if the court decided the case was inadmissible, Cerar said plan B was not needed because "there is plan A, which is completely clear: Croatia must implement the arbitration award".

The lawsuit brought against Croatia is in no direct relation to the border arbitration as such, but discusses violations of EU law committed by Croatia, the ministry said in a release.

Slovenia has taken measures and adopted legislation to implement the border arbitration decision, while Croatia is yet to fulfil this obligation, it added.

Pahor and Šarec commented on the matter following a tradition December meeting of the president, the prime minister, the presidents of both chambers of president.

Pahor stressed Slovenia would insist on setting up a Slovenian-Croatian demarcation commission which will set the land border, as envisaged in the arbitrtaion award.

Šarec explained Slovenia had called on Croatia to appoint its members to the commission four times now, but Croatia had failed to respond.

Slovenia's agent Maja Menard meanwhile believes Pikamäe ignored Slovenia's claim and was deciding as if Slovenia had expected the EU court to define the border. On the basis of Croatia's refusal to implement the arbitration award, he also argued the border had not been drawn.

Menard is however reserved in any further comments, saying she must read the full opinion first. This was also echoed by Marko Vrevc of the Foreign Ministry, who said that the advocate general's position was not what Slovenia had expected.

"Slovenia is not taking Croatia to court because the course of the border was unclear but because it realised Croatia was hindering Slovenia from following EU law," Vrevc said, expressing belief that the Luxembourg-based court would decide differently than Pikamäe.

The opposition New Slovenia (NSi) regretted the advocate's position and hopes the ECJ will decide differently. A decision by a panel of judges is expected in a few months' time.

On the other hand, head of the National Party (SNS) Zmago Jelinčič said Slovenia displayed a poor understanding of international law.

Democrats (SDS) head Janez Janša tweeted the Slovenian government had known the outcome in advance and that Cerar, who was prime minister when Slovenia decided to sue Croatia, should cover the expenses from his own pocket.

When asked whether Cerar should be held responsible if thecourt follows the advocate's position, Šarec said the decision to take Croatia to court was a political one, taken after consultations of parliamentary party leaders.

Speaker Dejan Židan was very happy that the prime minister, the president, the upper chamber president and himself displayed complete unity in the face of today's development.

Alojz Kovšca, the National Council president, meanwhile, warned the border dispute between Slovenia and Croatia was a bad signal for other nations with unresolved border issues in the Balkans.

On the other hand, the opposition Left believes Slovenia should take a different approach instead of taking Croatia to court. MP Matej Vatovec reiterated the party's position the lawsuit was barely legitimate.

The coalition Alenka Bratušek Party (SAB) said Slovenia must persist in getting Croatia to implement the arbitration award even if the court decided the lawsuit was indeed inadmissible.

The SAB, as well as the coalition Social Democrats (SD) underlined the advocate general's position had no bearing on the validity of the arbitration award, which remains a binding element of international law.

All our stories on the border dispute can be found here

STA, 5 December 2019 - The opposition Democrats (aka Slovenian Democratic Party - Slovenska demokratska stranka, SDS) issued a demand Thursday that the government widen deployment of the army on the border under provisions of the defence act that may be triggered in the event of mass migrations.

Police figures show 11,786 cases of illegal border crossing in January-September, up over 70 from a year ago, which the SDS says demands that the government take measures to "provide for the security of the residents of Slovenia".

The SDS motion will be debated at a joint session of the parliamentary defence and home policy committees on 12 December.

The army received limited police powers under amendments to the defence act passed in October 2015, at the peak of the migration crisis when thousands of migrants crossed into Slovenia each day.

The provisions may be activated for a period of up to three months, a decision which requires an absolute majority in parliament to be initiated.

Soldiers are already assisting the police in patrolling the border and the SDS motion is unlikely to gain traction considering the government's official position that the police are doing a good job protecting the border.

The covers and editorials from leading weeklies of the Left and Right for the work-week ending Friday, 6 December

Mladina: Macron is right, NATO is brain dead

STA, 6 December 2019 - In its latest commentary, Mladina agrees with French President Emmanuel Macron's assessment that NATO is brain dead, as it has been proven by the acts of Turkey and the US. The weekly says this could actually be good news for those who already think that Slovenia has no business being a NATO member state.

"Of course Macron is right. What will be the next thing that NATO members, including Slovenia, will have to swallow," Grega Repovž, the editor-in-chief of the left-leaning weekly, wonders under the headline Of Course NATO is Dead!.

He notes that Slovenia, as a NATO member state, has apparently not been informed that "another member state will carry out ethnic cleansing of Kurds on the Syrian side of the Turkey-Syria border", adding that consulting other members is an obligation written down in the North Atlantic Treaty.

If no one but Macron is protesting, it is our obligation to conclude that NATO member states, including Slovenia, had been informed about Turkey's intentions and that they had decided to tolerate them. "Can we conclude that the US consulted other members when it decided to exit the international nuclear deal with Iran?".

Repovž argues that neither Turkey nor the US cared what other NATO members thought. "Why? Because they don't take it seriously. For the US and Turkey, NATO has been clinically dead long ago - and they don't care if they violated the alliance's rules."

This is why Macron's words should be taken seriously by those who actually believe in NATO and in its mission. It is about those, in fear of Trump's America and Erdogan's Turkey, are being "calculated in tolerating the usurping of international law and rules, and destroying any credibility in the long run".

Repovž also wonders how it will be possible for NATO members to point a finger at Russia for violating democratic standards or criticise China if they tolerate grave violations of these standards by their allies.

"NATO is brain dead - Turkey and the US have shown this with their actions, and Macron with words. Which could be good news for all those who already think that Slovenia has no business being in this organisation," concludes the commentary.

Demokracija: Govt cares more for state apparatus than citizens

STA, 5 December 2019 - Demokracija says in its latest commentary that the government of Marjan Šarec does not only have the pathological desire for full control and for suffocating the free business initiative with regulation, but that it, first and foremost, cares more for the state apparatus than citizens.

"Just take a look at the budget: nine tenths will go for wages, material costs, welfare and other transfers, and only a tenth for investments," says Jože Biščak, the editor-in-chief of the right-leaning weekly.

Investments are something all citizens not only certain groups of people benefit from, which should be the purpose of public financing, he adds under the headline Doors Without a Lock.

"But the government says that citizens have obligations towards it. Of course, this is not true. In modern societies, governments have obligations towards citizen, and they as executive bodies have the power to decide only in rare cases."

These are defence of the population (military), maintaining order and peace (police) and making unbiased rulings in disputes (judiciary). "Everything else is abuse of authority, as the government must serve to citizens and not vice versa."

According to Biščak, Šarec and "his comrades", which make up by far the worst government in independent Slovenia, have "brought their authoritarian perversions to the point where they actually threaten democracy and freedom."

Their measures are ranking from "fully subordinating" the National Security Council and the intelligence agency SOVA, to heavily fining "free gathering of people into village guards" and persecuting media and opposition leaders.

If stricter forms of punishment were used in socialism, more sophisticated measures are available in the digital era, which force an individual to lose any desire for freedom and let themselves be controlled by the state.

"It is not socialism as such anymore, but a perfidious form of progressive democracy, which calls itself democratic socialism, where the deep state has the desire to control literally everything with help from a mass of loyal bureaucrats."

According to Demokracija, citizens are becoming prisoners of modern-day government despots. "When you are terrorised and exploited by the government, which uses the most detestable methods in the process, you have nowhere to go. But then you know what you have to do."

All our posts in this series are here

What follows is a weekly review of events involving Slovenia, as prepared by the STA.

If you’d like to keep up on the daily headlines then follow those here, or get all our stories in your feed on Facebook.

FRIDAY, 29 November
        LJUBLJANA - Slovenia's economy expanded by 2.3% at the annual level in the third quarter of the year or a seasonally adjusted 2%, the slowest rate in three years, as growth continued to decelerate in line with predictions, the Statistics Office said.
        LJUBLJANA - The National Assembly passed a mini pension reform, amendments to the pension and disability insurance act that will raise the pension base for men to equate it with women's and offer incentives to those who continue working after meeting retirement requirements.
        LJUBLJANA - Inspectors reported irregularities in the hiring practices at the Slovenian Intelligence and Security Agency (SOVA), in a case connected with the employment of a friend of Prime Minister Marjan Šarec. But Lidija Apohal Vučkovič, the chief inspector, said they were not of the kind that had been mentioned in the public and did not warrant action beyond guidance for the future.
        LJUBLJANA - The National Assembly passed amendments to the labour market regulation act that significantly increase the minimum monthly unemployment benefit while stiffening eligibility conditions across the board. The minimum benefit will be raised from EUR 350 to EUR 530 gross.
        LJUBLJANA - NLB, Slovenia's largest bank, posted a group net profit of EUR 162.2 million for the first nine months of 2019, up 2% over the same period last year. All banks within the group generated profit, with the parent company's profit rising by 21% to almost EUR 163 million.
        KOPER - Luka Koper, the operator of Slovenia's sole maritime port, reported its nine-month net profit drop by 29% year-on-year to EUR 34.5 million. Net sales revenue rose by 3% in the period to EUR 173.8 million.
        LJUBLJANA - Consumer prices in Slovenia grew at an annual rate of 1.4% in November, which is level with the month before. On the monthly level, prices grew by 0.1%. The annual inflation was driven by higher prices of services and goods, the Statistics Office said.

SATURDAY, 30 November
        MARIBOR - PM Marjan Šarec dismissed criticism about border security and said police were doing a fine job protecting the EU's external border, as he addressed a ceremony marking the 30th anniversary of Operation North, a police campaign which prevented a disputed rally that Serbian nationalists wanted to stage in Ljubljana.
        LJUBLJANA/KOPER - The police officer who was injured in the 2016 shooting at the Izola general hospital is suing the state for damages, media reported. He is still on a sick leave, while the damages he received from insurers did not cover his costs. He also wants compensation for physical and emotional pain.

SUNDAY, 1 December
        LJUBLJANA - President Borut Pahor commented on the latest row over the parliamentary report on the arbitration intelligence scandal in a televised interview, finding that while the report was useful for the country, its publication at the moment was not.
        MURSKA SOBOTA - The new religious leadership of the Slovenian protestant community formally took over as Leon Novak was installed bishop of the Evangelical Lutheran Church succeeding Geza Filo and Geza Erniša before him. Novak likened himself to the captain of a ship using the Bible as a navigational aid.
        LJUBLJANA - The Slovenian police recorded 14,066 illegal crossings of the border in the first ten months of the year, up 72% year-on-year, the latest statistics showed. The number of people who expressed the wish to stay in Slovenia was also up, from 3,952 to 4,441, but the figures show most people treat Slovenia as a transit country.
        LJUBLJANA - An idiosyncratic graphic novel that was originally released in instalments on Facebook won the Grand Prix for book of the year at the Slovenian Book Fair. "Vinjete Straholjubca" (The Bête Noire Vignettes) is a joint project by writer Eva Mahkovic and illustrator Eva Mlinar.

MONDAY, 2 December
        BELGRADE, Serbia - Foreign Minister Miro Cerar met his Serbian counterpart Ivica Dačić as he started an official two-day visit to Serbia dedicated to preparations for a joint 17 December government session. Cerar said Slovenia would make an effort for EU enlargement to the Western Balkans to be given a fresh impetus with the new European Commission.
        BRUSSELS, Belgium - Interior Minister Boštjan Poklukar told a session of the EU's Justice and Home Affairs Council that Slovenia advocated a comprehensive approach to migrations in the future EU migration and asylum policy. The underlying goal must be to reduce illegal migrations, he said.
        LJUBLJANA - The National Assembly overturned both vetoes the upper chamber imposed last week to block the state budget for 2020 and 2021, meaning the 2020 budget will start to be implemented on 1 January as planned. Prime Minister Marjan Šarec said common sense had prevailed.
        LJUBLJANA - Opposition Democrat (SDS) leader Janez Janša said he expected "an early election sooner or later" because the government coalition is running out of "candy" to distribute among voters, "which will cause big trouble". If fragmented, minority governments do not last long, Janša said.
        
TUESDAY, 3 December
        BELGRADE, Serbia - Foreign Minister Miro Cerar continued his official visit to Serbia by meeting President Aleksandar Vučić, who hailed Slovenia's active engagement in the Western Balkan Region. The pair discussed bilateral economic cooperation, succession to the former Yugoslavia and Slovenia's support for EU enlargement.
        LUXEMBOURG, Luxembourg - Slovenia, the European Commission and Croatia presented to the General Court of the European Union their arguments in a case related to a derogation enabling Croatia to use Teran as the name of a red wine protected by Slovenia. A ruling is expected by the end of next year.
        LJUBLJANA - A parliamentary commission inquiring into the prosecution of former Maribor Mayor Franc Kangler, which had been thwarted by the Constitutional Court, said it planned to file a criminal complaint against two judges at the court, Rajko Knez and judge Matej Accetto, arguing they had acted unlawfully and arbitrarily in decisions connected with the commission's work.
        LJUBLJANA - The results of Slovenian 15-year-olds in reading, scientific and mathematical literacy tests are above the OECD average, shows the recent PISA study. Compared to the previous such study, the students have come off as less accomplished in reading and science literacy though.
        LJUBLJANA - Turkish builder Cengiz announced it had won the contract to build the Slovenian section of the second tube of the Karavanke motorway tunnel, as the motorway company concluded talks with three bidders. The decision is yet to be confirmed by the DARS management.
        LJUBLJANA - The central bank warned that there were "substantial downside risks" in budgetary plans for 2020 and 2021 that the National Assembly confirmed in a revote. The risks "stem from a possible acceleration of the slowing of economic growth," it said.

WEDNESDAY, 4 December
        LONDON, UK - After attending a NATO summit in London, PM Marjan Šarec said he was happy that NATO leaders had again shown unity, solidarity and effort for democracy. While there were disagreements between some members states ahead of the meeting, he said everything had been settled during the discussion, which he described as constructive.
        LJUBLJANA - The migration crisis, security issues, EU enlargement, and nuclear waste management were discussed as President Borut Pahor met the presidency of Bosnia-Herzegovina at the outset of an official two-day visit. Pahor said that Slovenia supported Bosnia and respected its results despite the numerous challenges it faced.
        BRUSSELS, Belgium - In the wake of last week's earthquake, Slovenia's European Commissioner for Crisis Management Janez Lenarčič left for Albania for his first official visit after taking over as EU commissioner. The visit was designed to assess the extent of aid the country needs after the quake.
        LJUBLJANA - Parliamentary Speaker Dejan Židan urged the government to declare a climate crisis in Slovenia to ensure the necessary resources for drawing up a comprehensive strategy to fight climate change. He based his appeal on conclusions reached at a climate change debate at the National Assembly last month.
        NAPLES, Italy - Environment Minister Simon Zajc called for cooperation among all countries in the Mediterranean at a Barcelona Convention ministerial. He urged joint efforts for sustainable development and preservation of natural resources.
        
THURSDAY, 5 December
        LJUBLJANA - Mercator's bankrupt Croatian owner Agrokor and the newly established Fortenova group, which has taken over Agrokor's assets, reported the Slovenian Economy Ministry led by Zdravko Počivalšek to the European Commission over his interference in the transfer of Slovenian retailer Mercator to Fortenova. Počivalšek said he had been merely striving to protect Slovenian suppliers under existing competition rules and had always been open about his intentions.
        LJUBLJANA - The government adopted a national strategy on the prevention of terrorism and violent extremism which lays the groundwork for a systemic approach to reducing Slovenia's vulnerability to terrorism and violent extremism. The strategy aims to prevent radicalisation, and protect residents against acts of terrorism and violent extremism.
        BRATISLAVA, Slovakia - Foreign Minister Miro Cerar reiterated his call for effective multilateralism at the 26th OSCE ministerial. He stressed the importance of OSCE for improving democratic processes.
        LJUBLJANA - The government revealed plans to invest EUR 5.6 billion in transport and transport infrastructure in 2020-2025. Under the plan, the funds will be spent on air and maritime transport, investments in and reconstruction of state roads and toll roads, modernisation of railways, sustainable measures and traffic control.
        LJUBLJANA - The Administrative Court decided that several documents pertaining to treatment of migrants and asylum seekers on the state border are public information, ordering the Interior Ministry and the police to disclose the documents.
        LJUBLJANA - The District Court of Koper initiated bankruptcy proceedings for Istrabenz, a once mighty financial holding, as the request of the Bank Assets Management Company (BAMC), its biggest creditor. The move is designed to give BAMC control of Istrabenz's remaining assets.

All our posts in this series are here