A Blessing In Disguise

The faces were long and the statements short in Muddy Hollows on Friday, after the top EU court nixed the Slovenian motion to find Croatia is breaking EU legislation by refusing to enact the arbitration award in the border dispute between the two countries.

Top EU court nixes Slovenia over jurisdiction to force Croatia to implement the arbitration award but tells both countries to get their respective acts together
Slovenian flag in front of the EU Court of Justice (source)

As both readers know, an arbitration tribunal ruled on border demarcation between the two countries in mid-2017 in an award that went largely in Slovenia’s favour, but Croatia refused to acknowledge the result claiming that the process had been irreparably tainted.

Slovenian diplomatic and legal braniacs – always in plentiful supply in Muddy Hollows, but really thick on the ground during the administration of PM Cerar back then – were banging their heads together over how to deal with Croatia avoiding the reality like there’s no tomorrow.

While some argued for the proverbial sitting by the river and waiting for the bodies to start floating by, others advocated a more proactive approach and suggested dragging Croatia to court the moment the six-month implementation period expired.

Legal fuckery

They came up with a sweet legal move: Slovenia essentially claimed that by not implementing the award, Croatia was not being a good neighbour and was preventing Slovenia from meeting its obligations under EU law (specifically, fisheries).

But while the trick would have been neat had it worked, it didn’t.

Croatia countered by claiming that the Court of the EU, by definition, doesn’t have jurisdiction over open bilateral issues between member states. Since Croatia considers the arbitration null and void and the issue still fully unresolved in substance as well as in form, their argument goes, there cannot be any doubt that there is no EU regulation issue here, hence no EU court jurisdiction.

In the end, the court ruled that it indeed does not have jurisdiction over the matter and this prompted some very curt and muted responses in Ljubljana and – conversely – some highly expressive victory laps in Zagreb.

And given that a number of people in Muddy Hollows were planning on creating a wealth of political capital by winning this thing, the rebuke from Luxembourg didn’t go down well at all. Chief among them was foreign minister Miro Cerar, who (while still PM) signed off on the approach, said on Friday that “regrets that the court was not courageous enough”, which is dangerously close to being branded a sore loser.

In fact, Cerar had so much riding on this politically that he would probably had no choice but to resign his post had PM Marjan Šarec not resigned five days earlier, thereby taking his entire cabinet down with him, Cerar included.

It can be said, however, that whatever ideas and plans Cerar might have had for a potential presidential run in 2022, these were just shot down permanently.

The curious case of Janez Lenarčič

At the moment, the political landscape in Muddy Hollows is full of politicos running around in mild panic, trying to figure out what to do after PM Šarec decided that he has no more fucks to give and resigned. Torn between calling an early election and most of them probably getting thrown under the bus by voters on one side, and joining a Janša-led government and most assuredly getting thrown under the bus by the Glorious Leader on the other, most of these people are thinking long and hard about their options and have precious few thoughts to spare for a ruling that is done and dusted.

However, once the current political mess clears up a bit, questions will start being asked and you can bet your ass that at least one parliamentary inquiry will be set up. While the limelight will be on Šarec, Cerar and Karl Erjavec (especially the latter two, as Erjavec was Cerar’s foreign minister at the time), the man to watch will be none other than Slovenian European Commissioner Janez Lenarčič who – if this excellent podcast interview with RTVSLO correspondent from Brussels Mojca Širok is anything to go by – was instrumental in crafting the failed legal approach.

And now, in the immediate aftermath of the ruling, Lenarčič (former Slovenian ambassador to the EU) said for Slovenian media that Slovenia and Croatia should now petition the EU court to rule on whether the arbitration award is compulsory.

Which was… weird.

Not just because the two countries had already agreed in the agreement on arbitration that the award is indeed compulsory, but also because by doing so Slovenia would dismantle one of its key arguments, namely that the international agreements need to be honoured and international law respected. Why then risk that a court, that had already ruled against you once, would do so again, only with much graver consequences?

Because, embarrassment caused and butthurt Slovenian egos aside, Friday’s ruling doesn’t really change anything substantial.

Pissing in other people’s pools

Namely, the court bent over backwards to not only say that is has no jurisdiction but to tell both countries, in the most neutral terms possible, to fuck off and go piss in someone else’s pool.

The court saw straight through Slovenian moves and recognised that the EU law is not the real issue here and that Ljubljana was trying to force Zagreb to start implementing the arbitration award. Conversely, however, it also saw though Croatian attempts to get out of the arbitration deal by any means possible.

So while the court said it has no jurisdiction over the matter, it did say that both parties have a duty to implement the arbitration award, thereby stating that an arbitration award does indeed exist and preempting any Croatian interpretation of the ruling to the contrary.

It should be noted, however, that this does not mean that Lenarčič’s idea would be an open-and-shut case, should any future Slovenian government be foolish enough to go down that route.

Time to up the game

All this ruling does is to maintains status quo and take the EU as an enforcer out of the picture.  In a way, it is a bit of a blessing in disguise.

Perhaps it really is time to go sit by the river and wait of for the body of Croatian obstinance to float by.

In the mean time however, Muddy Hollows could up its EU engagement game. Because that is the one thing where Croatia is consistently punching above its weight whereas Slovenia is more or less just sitting there, thinking that just because it has the right of it, things will start happening of their own volition.

Well, guess again. 

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Agent provocateur and an occasional scribe.