Odnos između međunarodnog javnog prava i prava Evropske unije
AuthorĐorđević Aleksovski, Sanja
Committee membersKnežević-Predić, Vesna
Raičević, Nebojša M.
MetadataShow full item record
Having in mind that the process of fragmentation of International Public Law (IPL) has enabled the formation of numerous legal regimes, it is necessary to understand and analyze the relationship between two legal orders - IPL as a general legal regime and European Union (EU) Law as a specialized legal regime in such a broader context. Although preconditions for deciphering the relationship between these two legal orders were created with the creation of community law, the focus of research for decades was the crystallization of the internal relationship between the newly created community law and national legal orders. Only in recent years has there been a growing interest in deciphering the external relationship of EU Law to IPL. Given that IPL does not provide an answer to the question of relations with other legal orders, nor does it impose a method of incorporating its own norms, the answer to the basic research question concerning the relation between IPL and EU Law must be sough...t in EU Law. Although the EU, just as other international legal subjects, is obliged to respect IPL, it has the freedom to develop the relation to IPL on its own terms and merits. Therefore, after confirming that IPL and EU Law represent complete and comparable legal orders, the dissertation is conceptually the conceptual framework of the dissertation is based on research through the prism of basic institutes of each legal order: subjects, formal sources and responsibilities as reference indicators of the relation between the two said legal orders. Chapter II makes a comparison of legal subjects in the legal orders under consideration. In the trinity of subjects of law, both within IPL and EU Law, there is a certain similarity in terms of subjects, but also a great variance. Therefore, a true comparison can be made only in terms of States, which are the undisputed, original and full subjects of both legal orders. However, it may be noted that the degree of freedom in accordance with the concept of full sovereignty is higher in the domain of IPL than in EU Law, where the concept of sovereignty was reconceptualized into shared sovereignty. Additionally, the law-making power of States is significantly reduced within EU Law, due to the obligation of loyal cooperation between Member States, whose scope is not always discernible. In contrast, when concluding international treaties in IPL, States are only limited by imperative norms. Given that IO as subjects IPL cannot be compared with EU institutions, there was a need for reconceptualization of compared subjects. The EU, as a specific IO, was compared to typical governmental IOs, which ultimately revealed its many specific features. The different status of individuals is one of the basic demarcation lines between IPL and EU Law. Having in mind that their subjectivity is only in statu nascendi in certain areas, the status of individuals as legal subjects in IPL is disputable. On the other hand, in this segment, EU Law has moved away from the logic of the general IPL, having granted individuals the status of the legal subjects. However, after a deeper analysis, such a clear distinction is blurred as it is substatially diminished. It follows that the subjectivity of individuals in EU Law is at a higher stage of development than the subjectivity in IPL, not only in terms of granted subjective rights but also in terms of their established procedural capacity. Chapter III examines the relation between IPL and EU Law through the prism of formal sources, primarily international treaties, international customary law and general legal principles. For a long time, the qualification of the relation of EU Law to IPL in legal doctrine was based solely on the analysis of the relation of EU Law to a group of international agreements of economic nature, subsequently extending such an inductive conclusion to the entire general IPL, which later proved to be incorrect. Although one of the proclaimed goals of the EU is "strict observance and the development of international law", a deeper analysis of CJEU case-law actually shows that EU Law has developed ways to avoid the use of international treaties and customary law within it through various judicial techniques and principles. Having in mind that the reception of international treaties and customary law in EU Law alone cannot achieve their full effect, the issue of their incorporation is only the first of two key issues. The true attitude towards the formally proclaimed goal of strict observance of IPL is perceived at the level of the effect of international legal norms, originating either from treaties or international customary law. The established strict and inadequate test of direct effect in the narrow sense prevents the direct effect of international provisions, for which reason legal doctrine offers a solution in the form of redesigning and/or extending this principle. Therefore, the Court of Justice should de lege ferenda build a different test concerning the application of the principle of direct effect in a so-called broader or external sense, in order to enable greater observance, application and effect of international legal norms within the EU legal system. This would also facilitate their better integration, which is only perfunctory and formal for the time being. The relation between the general IPL and EU Law may also be observed by comparing the general legal principles of IPL and the general legal principles of EU Law. Having in mind their specific dichotomy, practice reveals that they are used as a means of both dividing and approximating these legal orders. Finally, in Chapter IV, after analyzing the regimes of responsibility in IPL and EU Law, research results revealed certain similarities as well as numerous differences. In principle, the comparison of responsibility in these legal orders is complex due to thier hybrid and multifaceted character. In IPL, the hybrid character of responsibility is reflected in the pervading elements of private and public law, as well as in the possibility of pursuing state responsibility in cases involving both illegal and legal acts. Unlike most internal legal systems (including EU Law), the basic criterion of division in IPL is the illegality of an act. What both IPL and EU Law have in common is a shifting focus from the narrow issue of violation of law and its reparation to a broader context. In this sense, both legal orders tend to achieve a dual goal. In addition to ensuring the protection of the subjective rights of the injured party, which is achieved through compensation as one of the fundamental principles of law, they also strive to achieve a higher goal which is embodied in the proper functioning of the entire legal order. The regime of responsibility in EU Law is also multi-hybrid, given that it is a specific mixture of private and public law segments, and that it recognizes responsibility for both illegal and legal acts. The discernible hybridity of EU Law has another distinctive dimension in relation to IPL, bearing in mind that EU Law drew inspiration not only from IPL but also from national legal orders. Thus, the element distinguishing EU law from IPL constitutes an element of similarity with national orders; it is reflected in instituting a clear classification into contractual and non-contractual liability. Hence, the basic focus and the basic criteria for classifiaction of responsibilities are different in the two legal systems. Nevertheless, IPL has had a significant impact on EU Law in the field of accountability, given that the concept of accountability of states in IPL has served as a direct inspiration for the birth of a parallel concept within EU Law. Although it is quite delicate and complex to compare two hybrid sets of responsibility regimes stemming from IPL and EU Law, it is prima facie observed that the concept and regulation of responsibility in general IPL is at a much lower level than in EU Law. We may observe hesitancy even in the stance of the International Law Commission, which should be the flagship of codification. In contrast, in EU Law, this task is resolutely performed by the Court of Justice. The analysis of relevant indicators shows that the qualification of the formely existing monistic relationship between EU Law and IPL has changed. Therefore, although it is logical to conclude that their relation is dualistic, such a statement is not entirely true. It would be too harsh and incorrect to claim that there has been a clear-cut shift from monism to dualism, or from an open to a closed relationship with the IPL. Considering the need for a nuanced understanding of the approach of the Court of Justice to IPL, such simple and one-sided attributes are not recommended. In effect, the constitutional architecture of the EU legal order and the insistence on its external autonomy must constantly find a delicate balance between the formal respect for international law as one of the proclaimed goals of the EU and the demand to defend the autonomy and integrity of its own legal order. It is concluded that the internally built autonomy of the EU legal order (in relation to national legal orders) had to be confirmed on the external level (in relation to IPL). Accordingly, the so-called external autonomy implies that EU Law does not rely entirely on the rules and logic of IPL. Therefore, the dual nature of EU Law and its hybridity play a key role in determining its relation to IPL. Although it is part of the system of general international law, EU Law as a self-contained legal regime is characterized by the hybridity of basic legal institutes, and it is a mixture of rules of IPL and the peculiarities of its legal order. The relation of EU Law to IPL was primarily shaped by the Court of Justice, which played a key role as a quasi-constitutional court, preserving and nurturing the autonomy of the EU legal order in relation to IPL, while concurrently taking into account the obligation to respect IPL in principle. However, having in mind that proclamations and practice are often different, the dissertation critically analyzed the proclaimed general attitude of respecting IPL by considering the method of reception and the effect of its norms within EU Law, with the aim of deciphering the true relationship between these legal orders. In practice, the observance of IPL appears in its negative form, as avoidance of application. In other words, there are numerous legal technics and legal arguments that essentially aim to avoid international obligations without raising the subsequent question of responsibility. Through the work of its judicial bodies, EU Law has created an array of legal instruments which are manifested as a specific combination of doctrines, application tests, legal principles and methods of interpretation by means of which EU Law defends its basic values and basic principles as an expression of identity and autonomy from the rules established in another order - the international legal order. By combining the tests of direct effect, methods of transformation, standards on the seriousness of damage, exclusive jurisdiction of the Court of Justice, the duty of loyal cooperation, as well as frequent transformations of international legal norms into internal law, EU Law has strongly diverged from IPL. Therefore, dualistic pluralism would be the most suitable theoretical framework that could most accurately explain such a nuanced, complex and dynamic relation.