Naslov
Legal tradition and new challenges after Croatia's 2013 accession to the EU – avenues of protection of national constitutional identity

Autori
Horvat Vuković, Ana

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, sažetak, znanstveni

Izvornik
Legal Tradition and New Legal Challenges / Drakić, Gordana ; Jovanov, Ilija ; Arsenijević, Danijela - Novi Sad : University of Novi Sad, Faculty of Law, 2020, 48-50

ISBN
978-86-7774-224-9

Skup
International scientific conference: Legal Tradition and New Legal Challenges

Mjesto i datum
Novi Sad, Srbija, 01.10.2020. - 02.10.2020

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Podatak o recenziji nije dostupan

Ključne riječi
Croatian legal tradition, EU, constitutional identity, Simmenthal doctrine, supremacy, interlocutory procedure

Sažetak
Mirroring the basic tenets of a classical continental order, Croatia's legal tradition suffered two major challenges anent its 2013 accession to the EU. The first, already introduced in a lesser scope in 1998 by the ratification and implementation of the European Convention on Human Rights, pertained to the flexibilization of Croatia's negation of courts as loci of independent creation of law. The EU's precedential system, whereby case-law of the ECJ functions as an autonomous, quasi-constitutional source of law, intervened in such a setup of the Croatian constitutional review system, requiring that the combined effect of the (at least doctrinally!) well-established principles of supremacy (including in its procedural aspect, known as the „Simmenthal doctrine“) and direct effect be that a national judge is free to disregard a domestic source of law in favour of a contrary European norm (even a judge-made one). Such expected occurrences then naturally lead to the second challenge, namely the potential of such application of EU law to be on a collision course with the so called „constitutional identity“ of the Croatian state, inspired by the jurisprudence of the German and other European constitutional courts and recognized by the Croatian Constitutional Court since 2011. Defining the constitutional, and therefore national DNA of a people, the right to dispose of such identity does not and cannot reside in any constitutional organ of the state, including in the Croatian people (through referenda), and cannot be amenable to change by application of the supremacy doctrine. This especially holds regarding the potential that such a super- imposition of a foreign legal order on nationally established standards of protection of fundamental rights and freedoms could lower those standards, since a pan-European levelling of protection of the same (in the name of uniformity and effectiveness of EU law) could in our national case level them down. This is especially true due to the nexus between the EU’s Charter of Fundamental Rights (EU’s rights catalogue) and the ECHR (a pan-European “floor” of rights as a minimum common denominator of rights’ protection), whereby a right contained in the former and corresponding to a right in the latter will be applied as if their scope and meaning were the same. Building on Croatian experience with implementation of the ECHR and considering other EU nations’ responses to similar challenges, we suggest that this potential risk of a Croatian-EU jurisdictional clash be attenuated by accommodating the peculiarities of the EU system in a way that would simultaneously honour Croatian obligations under the Lisbon Treaty and protect national constitutional identity. Relying on comparative constitutional law, we suggest a system of dual preliminarity, which would launch interlocutory procedures before both the ECJ and the Croatian Constitutional Court, and work best to extract a national judge from the non-enviable position of a „double agent“ of the national and EU founding documents. Such a system would allow for the greatest possible mutual constitutional accommodation of the two orders, even if always cognizable of the fact that an irreconcilable difference between the two orders would, in ultima linea, have to be resolved in line with the Croatian tradition of constitutional supremacy and primacy of national safeguards of fundamental rights' protection.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA