The International Supranational Rule of Law and the Slovenian Legal System

The International Supranational Rule of Law and the Slovenian Legal System Presented by: Dr. Flander Date: 13 October 2023 Introductory Remarks On The Rule Of Law - As a legal concept and a fundamental legal principle, the RULE OF LAW → Almost universally accepted at the national and international level; in both the formal (institutional) and the informal (theoretical and political) discourse, by liberals and conservatives, by the left and right - **Chesterman (2008) maintains: "It is a term endorsed by both the World Social Forum and the World Bank."; - **"Widespread support is possible precisely because of widely divergent views of what it means conceptually and practically" - Within the legal academia (in the late 70s), the concept was subjected to criticism by the left (marxists, feminists, postmodernists, etc.) and also to a lesser extent - by the right (by the proponents of the Law and Economics) - Historically, three BASIC versions of the concept evolved→ The constitutional concept (it developed domestically, keeping the nation-state sovereign), the international concept and the supranational concept (they developed in the post-war period and introduced certain limitations to national sovereignty (!!) - Study of the status of the international & supranational (rule of law in the SLO legal system • In relation to the (traditional) international (rule of) law, the SLO int. law preserves CONSTITUTIONAL SOVEREIGNTY  **Not as straightforward as it may seem (!!) • A different constitutional regime applies to the EU law (and the supranational rule of law)  ***Its status in is not entirely clear in the SLO legal/constitutional system (!!) International/Supranational Rule Of Law In The SLO Legal System - The status of the international (rule of) law in the SLO legal system • CONSTITUTION → several provisions that determine the position of the international law (and EU law) vis-à-vis internal law • *These provisions incorporate the international (and supranational) rule of law into the legal system of the RS (!!) • Arts. 8 and 153: Principles of international law and international treaties ratified by the National Assembly SUPERIOR to laws, government regulations and other general legal acts, but INFERIOR to (must be in conformity with) the Constitution (!!) • → SLO internal legal order in relation to the international law preserves CONSTITUTIONAL SOVEREIGNTY • **If inconsistent with the Constitution, they cannot be implemented, as this would be unconstitutional ("without legal effects") • In practice the thing is not so simple (!!) → SLO could commit to something in an international treaty that would be in • conflict with the constitution (pacta sunt servanda !!); Art. 160 in the process of ratifying an international treaty, on the proposal of the President of the Republic, the Government, or a third of the deputies of the National Assembly, the CC shall issue an opinion on the conformity of such treaty with the Constitution (the NA is bound by its opinion) • → preventive review of constitutionality (!); PROBLEM: If an international treaty would already be ratified and valid (?) • Art. 15 (!!) Special situation in which international law would take precedence over the Constitution ** • So-called NON-ENUMERATION CLAUSE → "opens" the Constitution's human rights catalogue → • if an international treaty provides a higher standard of protection of human rights (& the rule of law) than the SLO Constitution, priority should be conferred to the international treaty (!!) • Art. 3a (2003 Amandments to the Constitution) → Adopted before the accession of the Republic of Slovenia to the EU • A constitutional basis for the "transfer of the exercise of part of sovereign rights to international organizations which are based on respect for human rights, democracy, and the principles of the rule of law" **It does not explicitly refer to the EU (!!) • Significantly different constitutional set-up from the one SLO had before joining the EU (!!) → • "Legal acts and decision adopted by the EU institutions shall be applied in SLO in accordance with the EU law" • **This provision misses an explicit and precise determination of the hierarchical position of EU law in relation to domestic law • **Caused considerable discomfort in the SLO legal system (!!) • In theory and practice, two DIFERRENT VIEWS emerged regarding the POSITION OF THE EU LAW → • 'supranationalism approach' → "SLO recognized the principle of supremacy of primary sources of EU law" • **Legal rules in the EU treaties should prevail and have supremacy over all legal/constitutional rules of internal law • **No ground to refuse the use of provisions of primary EU legislation and individual legal acts • based on it if found contrary to the SLO Constitution • **Sovereignty (as a power to independently make legal decisions) is transferred to the EU • (!!) Over time some EU law experts the supranationalism approach to viewing the relationship between EU law and internal law is NOT CONVINCING (neither theoretically nor practically) • 'pluralist approach' the leading principle underlying the relationship between the EU and national law shall be the relational principle of primacy; relationship between the two corpuses of law heterarchical (!!) • National law is not subordinate to the EU law and to the decisions of the EU institutions (including courts) • Effectiveness of the EU law and decisions of the EU institutions in the territory of the Republic of Slovenia is not unconditional • **It consists of two independent yet interrelated legal systems • Avbelj et al. (2019): "Plural sovereignty" SLO remains sovereign in the usual sense, while the EU has acquired functional sovereignty within the framework of transferred competences • **Doctrine was built from the 70s onward and proved by the German federal Constitutional Court in the Weiss Case • * *GFCC held that a CJEU judgment was arbitrary and not binding in Germany (similar decisions by some other CCs) • **In the case of a serious conflict between the EU law/decision and the SLO national law → "the principle • of primacy of EU law should apply only if the EU respects the principles of democracy, the rule of law and human rights and if it operates within the boundaries of transferred powers" (Avbelj, 2020) • **If that is not the case, the CC could exceptionally decide that the EU law should not be applied • → So far, the SLO highest courts have not taken a challenging stance towards EU laws/decisions • (!!)... Avbelj's expert opinion has not been accepted by the courts International & Supranational Versus National Rule Of Law - "Lessons" from the European Court of Human Rights • SLO ratified ECHR in 1993; until 2006→ convicted by the ECtHR for violating convention rights only six times; after that SLO became a country which was covicted more times than most other countries; By 2021, 10,136 compl.; violation in 342 j. • Review of randomly selected case law in the vast majority of judgements the ECtHR does not explicitly refer to (the principle of) the rule of law (**29 "noteworthy cases" that concern SLO according to the ECtHR Press Unit → only in 2 cases) **In some reviewed judgments, the ECtHR refers to principles and elements that are constitutive of the principle of the rule of law or are inextricably linked to it • (!!) ECtHR: stated in several decisions that the rule of law is inherent in all the articles of the Convention → the violations of convention rights established by the ECtHR may also be considered violations of the principle of the rule of law • Explicit reference of the ECtHR to the principle of the rule of law → Šilih v. SLO, Ribič v. SLO, Benedik v. SLO • ECtHR interpreted the principle(s) of the rule of law differently from the SLO authorities (in the Benedik case, also differently from the CC); ECtHR established more strict standards of the principle than those provided by the SLO judicial and other authorities; SLO has been consistently enforcing the judgments of the ECtHR; in the public and professional discourse the ECtHR's understanding of the rule of law has not been • seriously challenged; SLO did not appeal any of the judgments at the grand Chamber of the ECtHR → SLO recognizes the ECHR's full sovereignty (within the scope of its powers) - Lessons" from the Court of Justice of the EU • Two decades of SLO's membership in the EU dozens of court proceedings were held against or in connection with SLO • **Most often initiated by the Commission (due to delays in the implementation of directives and non-fulfillment of obligations • from the European treaties), only a few requests for a preliminary ruling by the CJEU; very rarely cases were brought to the CJEU by the SLO state, corporations or individuals against an act or failure to act of the Commission • Review of four randomly selected preliminary ruling cases (Detiček No. C403/09, Omejc No. C-536/09, Pelati No. C-603/10 and Grilc No. C-541/11) → CJEU did not explicitly refer to the rule of law in any of them (!!) • C-316/19 Commission versus Slovenia (17 December 2020) → the rule of law one of the key concepts referred to by CJEU • **The case relates to the fall-out of the financial crisis in 2018 when SLO saved private banks with taxpayers' money • **Due to allegedly too high cost of these banks bail-ins questions of responsibility of the Governor of the BS arose • **SLO police carried out house search in the Bank of Slovenia and seized national documents as evidence • **The Bank of SLO claimed that the investigation interfered with the ECB's archives (protected by the Protocol on privileges and immunities) to which the SLO authorities were not to have access without an agreement of the ECB • **CJEU → SLO has failed to fulfil its obligations under the Treaties and protocols • (!!) Avbelj (2020) assessed this judgment of the CJEU as clearly wrong (rightfully so!); immunities & privileges • are common in international law BUT exceptional in a constitutional system based on the rule of law; • SLO correctly warned that the CJEU's interpretation goes beyond what is stipulated in the international law with opposing the trend of narrowing the functional immunity of international organizations (!!) Summary & Conclusions - Study of the status of the international and supranational (rule of) law within the SLO legal system • In relation to the (traditional) international law, the SLO internal law preserves constitutional sovereignty • A different constitutional regime applies to EU law; in the absence of an explicit constitutional rule on the hierarchical position of the EU law in relation to domestic law, two different views emerged at least in theory, the 'supernationalist approach' was replaced with the 'pluralist approach'  In the ECtHR and the CJEU cases under scrutiny, the domestic interpretation and understanding of the rule of law differed from the international & supranational one, however, an important difference between the judgments of both courts was noticed → ECtHR interpreted the (international) rule of law in such a way that it established more strict standards of this principle than those provided by the Slovenian judicial and other authorities (neither by the authorities nor by legal experts its decisions have been seriously disputed)  → In contrast, in (at least) one of the reviewed judgments, the CJEU interpreted the rule of law  in such a way that it was not only incompatible with the interpretation and understanding by domestic courts but also with the established international standards of the RULE OF LAW (!!)  **HOWEVER, once the judgment was issued, SLO courts or other authorities did not challenge it in any way (!!)  In the future the SLO Constitutional Court (as the final defender of Slovene constitutionality) should strive to follow more "courageous" national constitutional courts and - when necessary  take a position of critical restraint in relation to the EU law and the decisions of the EU institutions