Application of the European Law in Slovakia
Juraj Čorba – Ján Klučka – Radoslav Procházka – Veronika Vávrová
The chapter on „Application of the European Law in Slovakia” deals with the up-to-date analysis of the constitutional and other conditions of the practical application of the Association law (represented by the Association Agreement and the acts adopted on its basis) as well as the primary and secondary law of the European Union and the European Communities in the Slovak Republic. Furthermore, it reflects the procedural aspects of the application of the acquis communautaire in the Member States of the European Union and finally deals with the responsibility of the Member State and the subsequent sanctions caused by failure to implement (or unsatisfactory implementation) of the acquis communautaire in the legal system of the respective state.
As for the Association Agreement of 1993, it can be considered to be an international agreement from the point of view of the Slovak constitutional arrangement, whose application and its constitutional conditions are basically subject to the Art. 154 c, para. 1 and 2 of the Constitution of the Slovak Republic. Under this authority the relevant subjects of the domestic bodies responsible for application of the law should decide upon direct application of Agreement’s self-executing provisions, provided that all constitutional conditions are met. Albeit this constitutional mechanism of the application of the norms of the association law is available, up to now (and for various reasons) it was not used in the Slovak Republic yet.
The new constitutional amendment of Art. 7 of the Constitution of the Slovak Republic (in particular paragraphs 2 and 5) is crucial for the application of the European Union law as well as the Community law (primary and secondary legislation). The application of the international agreements stemming from these areas of the European law will be basically subject to the regime of the Art. 7. para. 5 of the Constitution, i.e. their self-executing provisions will take precedence over the laws of the Slovak Republic. The definition and the scope of this precedence (in contrast to the association law) will not be determined by the particulars bodies of the implementation of law, but centrally by the National Council of the Slovak Republic due to its special constitutional power under Art. 86 letter d) of the Constitution of the Slovak Republic. However, at the same time it still applies that the systemic features of autonomous Community legal system will mainly determine the application of the acquis communautaire, as qualified in the case law of the Court of Justice of the European Communities. The secondary legislation, which in not to be applied directly, e.g. directives will be executed by statutes or by the harmonisation regulations of the Government of the Slovak Republic.
This constitutional arrangement creates the space not only for the desired „penetration“ of European legislation into the Slovak legal system, but also for its practical application by subjects of domestic law and the respective state authorities. This also applies for courts (Art. 144, para. 1 of Const.) and their possibilities (or obligations) to utilize their competences according to Art. 234 of the Treaty establishing the European Community. However, the decision as to which of the Slovak courts will be considered to be courts of the “final instance” as well as other procedural conditions related to use of the pre-trial proceeding before the European Court of Justice will be brought by the future judicial practice after the accession of the Slovak Republic into the European Union, which will be potentially connected with the necessary amendments (supplements) of respective procedural rules.