Constitutional Aspects of Croatian Accession to the EU

1. Constitutional Aspects of Croatian Accession to the EU By Tamara Ćapeta (October 2007)

2. Place of domestic constitutions in EU system • Formally – EU indefferent to national constitutions • Substantively – domestic constitutions supply legitimacy to EU legal order • “composite constitution”- balancing domestic and EU constitution

3. When does domestic constitution become relevant in accession process? • No negotiating chapter on ‘constitutional impact of EU membership’ • Constitutions should, however, be considered before membership

4. Types of constitutional provisions influenced by EU membership • Constitutional basis for membership • Organisation of domestic institutions of governement for participation in EU decision-making • application of EU decisions in domestic order and the relationship between EU and domestic rules • Other specific provisions

5. Constitutional basis for membership • Provision enabling accession • General transfer of powers • Transfer of powers to the EU • Separate EU chapter (comparative overview) • Provision regulating the adoption of the EU Treaties amendments

6. Constitutional basis for membership • Voting requirements • Usually the act by which accession treaty is accepted requires higher majorities then usually for the adoption of international treaties • Parliamentary procedure often coupled by referendum

7. Institutional arrangements • Relationship between parliament and government • Parliamentary control over government representatives in Council • Implementation of EU law • Participation of parliament in EU affairs as provided by EU Treaties

8. Relationship between EU and domestic law • Supremacy and direct effect of EU law • Ordinary supremacy: often solved in practice on the basis of either transfer of powers provisions, or provisions governing position of international treaties in constitutional order • Supremacy over constitution: constitutional tolerance • Powers of the courts to review Laws for conformity with EU law (Simmenthal requirement)

9. Other specific provisions • Voting rights at local and European Parliament elections • Central bank independence • Ownership of land • Extradition • Discussed during negotiations in different chapters

10. Croatian Constitution – basis for membership • Undecided – 2 possible provisions • Article 141: association into alliance with other states • Article 139/2 : transfer of powers on international organisations

11. How to decide? • Voting requirements • Article 141 : 2/3 majority in parliament + obligatory referendum – majority of total number of electors (electorate includes also diaspora) • Article 139 : 2/3 majority in parliament + referendum possible – Art. 86 majority of voters who voted; required turnout: majority; referendum outcome is binding

12. Citizens support for EU membership • 2000 (July): FOR – 77,6% AGAINST – 7,9% • 2001 (Dec): FOR – 76,9% AGAINST – 13,2% • 2002 (Dec): FOR – 75,7% AGAINST – 12,9% • 2003 (Jun): FOR – 73,6% AGAINST – 13,5% • 2004 (Aug): FOR – 51,0% AGAINST – 39,0% • 2005 (Aug): FOR – 41,9% AGAINST – 47,9% • 2005 (Dec): FOR – 48,6% AGAINST – 44,0% • 2007 (Spring) – different survey: • 29% - EU membership good • 28% - EU membership bad • 40% - neither good nor bad • 3% - do not know

13. How to decide? • Political pragmatism • Government that wants Croatia in the EU would try to avoid Article 141 as constitutional basis for membership

14. How to decide? • Purpose of constitutional provision • Art. 141 : to disassociate from Yugoslavia; not to become EC/EU member (?) • Art. 139/2 – not for UN, not for SAA, not for WTO, was probably not introduced for EC either – no purpose?

15. How to decide? • Relevance of EU Constitutional Treaty failure/Reform Treaty • perception of EU as ‘alliance of states’ – application of Art. 141 • Perception of EU as ‘international organisation of states’ – application of Art. 139/2

16. The third solution • To introduce specific EU legal basis in the Constitution • Reasons in favor: • Importance of EU in the life of a Member State • Importance of constitution for the determination of a state – “taking constitution seriously”

17. Other provisions in present Croatian Constitution important for EU membership • Institutional provisions not adjusted for EU membership • Voting for local and EU elections not possible • Extradition of Croatians not possible • Constitutional law on Constitutional Courts – review of constitutonality centralised (interpretation conform to EU requirements possible)

18. EU Chapter • Provision allowing for membership in the EU, providing for adequate procedure – higher majority in parliament + opitonal referendum • Provison providing solution for ratification of future EU Treaties amendments • Substantive conditions for membership, and acceptance of future changes (?) • Provision on leaving the EU (?) • Provision deciding on appropriate procedure for implementation of EU law (relationship parliament – government) • Provision deciding on parliamentary control of government in EU affairs • Provision deciding on participation of parliament directly in EU affairs • Provision deciding on the relationship between EU and domestic law, and the role of courts (?)