“In the lawsuit, we are also demanding that they provide us with all the documentation. We also want the icing on the cake – what is currently crossed out to be published. We also want all the electronic communication that went on between the European Commission and the Slovenian government or other actors involved in this case,” MEP Dr Milan Zver said at a press conference on the occasion of the filing of the lawsuit against the European Commission.
At a press conference held on the 9th of May – Europe Day, Slovenian Democratic Party (Slovenska demokratska stranka – SDS) President Janez Janša, MEP Dr Milan Zver and international lawyer Dr Miha Pogačnik spoke about the filing of a lawsuit against the European Commission over the non-disclosure of internal documents on Věra Jourová‘s mission in Slovenia and its impermissible interference in Slovenia’s internal affairs.
Janša was the first to speak at the press conference: “As previously announced, MEP Zver has filed a lawsuit against the European Commission at the EU General Court for violation of European law.” The key in this respect is the illegal visit of the Vice-President of the European Commission, Jourová, to the Slovenian Constitutional Court.
Several elements of a breach of European law
Janša pointed out that the battle for each piece of documentation lasted a very long time. However, the documentation obtained so far shows three things: the first is that part of the documentation is still being hidden from Slovenia, the second is that what has been provided constitutes one of the key elements for the lawsuit, and the third is that there were several elements in the documentation that was provided that 100 percent prove a violation of European law. This is important because the European Union is based on the rule of law, and the competencies of the institutions are precisely defined. Individual institutions are only allowed to do what is expressly provided for in the law. Janša also stressed the importance of the separation of powers, both between the EU institutions and within the country.
The very announcement of the visit, in Janša’s view, makes it clear that what happened was a violation. The European Commission, he said, has no power whatsoever to request anything from any Constitutional Court in any EU Member State, which is very clear from European law. He noted that Jourová’s visit took place at the very time when the Constitutional Court was considering the constitutionality of the Radio-Television Slovenia Act. “This visit was deliberately timed to coincide with this review because Commissioner Jourova had already publicly supported the act that was the subject of the Constitutional Court’s review at the time of her visit.” Janša is convinced, based on all the circumstances, that her visit was devoted to this very point – the European Commission’s assessment of the amendment to the RTVS law. The key point of the lawsuit is thus that the European Commission is hiding the content of this part of Jourová’s conversation.
“Why is the 3rd indent of the minutes or reminder blacked out?”
“Why is this being hidden if the content of the conversation was not controversial? Why is the 3rd indent of the minutes or reminder blacked out?” Janša expects that the European Commission, or the member of the European Commission responsible for transparency, will finally start to act transparently after the positive ruling of the European Court of Justice.
This was an unacceptable interference by a high-ranking EU official in the sovereign decision-making of the Constitutional Court
The next speaker at the press conference was MEP Zver, who had filed the lawsuit, who began by stressing the importance of trust in the integrity of European institutions for the existence of the EU. “When an institution loses trust, it falls into crisis and may even collapse. That is why I think it is important that we expose the kind of side-effects, the mistakes, that happened with Jourová’s intervention in the Slovenian political and legal space,” he explained.
The political and administrative route has not yielded results, hence the decision to take legal action. “But the Slovenian public certainly has an interest in knowing the whole truth – what is going on in this respect.” To this end, they turned to Miha Pogačnik, a prominent lawyer and legal expert in international relations. Meanwhile, lawyer Stušek will be the official representative of the case before the European Court of Justice. MEP Zver expressed the hope that “the Court will decide on the matter as soon as possible, because this is a precedent-setting case.” In his opinion, the case is not only about proving breaches of administrative procedure or breaches of substantive rules of EU law, but also about the abuse of power that has occurred in this case.
Above all, it was also an unacceptable intervention by a senior European executive in an EU Member State, in an area where the Member State is fully sovereign. “In the lawsuit, we are also demanding that they provide us with all the documentation. We also want the icing on the cake – that what is currently crossed out be published. We also want all the electronic communication that went on between the European Commission and the Slovenian government or other actors involved in this case.” If similar precedents or tampering were to happen in the future, in other countries, and if this were to become a regular practice, the level of trust that EU citizens have in the European institutions would plummet.
Jourová would not have allowed herself the same actions at the German Constitutional Court
At the same time, this could lead to a major crisis, which, of course, they do not want. That is why they want to draw attention to the unacceptability of such a course of action. MEP Zver is convinced that Jourová would never have tried to do something similar to what happened in Slovenia at the German Constitutional Court. However, it is the task of MEPs and Slovenian citizens to prevent such behaviour and to prevent various politicking and political desires in the future. This is why he believes that this lawsuit is a precedent-setting case that will also have a positive impact on the future development of the EU.
International law protects Slovenia and recognises its sovereignty
The legal aspects of the lawsuit were further explained by international legal expert Miha Pogačnik: “I am glad to be able to say something about a case which is important, and which will be even more important, and which will roll like a snowball.”
He went on to explain why the case is crucial – because it concerns large legal systems. On the one hand, there is the European Union; on the other, Slovenia, as well as the European Commission and the Constitutional Court. And all these institutions are now framed in three big legal systems: international law, European law, and the legal order of the Republic of Slovenia. International law requires the EU to comply with the rules of international law because it is an international organisation. The EU also requires Slovenia to comply with its rules because it is a Member State. At the same time, international law protects Slovenia and recognises its sovereignty. Meanwhile, Slovenia also expects the EU to fulfil its conditions. “The European Commission is currently caught in this triangle,” he explained.
The European Commission and 17 infringements
The European Commission is being accused of non-transparency, lack of trust in the institutions, misuse of powers and abuse of office. It is also accused of a clear breach of procedure. The point is that a similar case may arise in another EU Member State (perhaps not in Germany) and that, in addition to ordinary citizens, the state authorities are also interested in how this will play out. The action was brought on the basis of Article 263 of the Treaty on the Functioning of the European Union and Article 8 of Regulation 1046/2002, which allows a lawsuit to be filed (it was filed with the EU General Court). Pogačnik went on to point out a number of infringements: arbitrary failure to reply, breach of deadlines, arbitrary setting of deadlines by the European Commission, and in one case even, putting themselves forward as interpreters of deadlines, saying they would reply “if possible”.
The Commission’s breaches were confirmed by the European Ombudsman, who twice agreed with MEP Zver and finally referred him to the courts, which is where he is now continuing this fight. According to Pogačnik, there are no less than 17 pieces of evidence of misconduct, and it was Commissioner Jourová’s office that played a key role in the Commission’s delayed and incorrect response, as evidenced by the correspondence.
He also referred to the incident at the Slovenian Court of Justice, when Jourová met with the President of the Constitutional Court, Matej Accetto, and raised the “primacy principle,” which is not applied in this area.
No one can interfere with the independence of the judiciary!
In the area of justice, Member States have not transferred all competencies to the EU. Pogačnik: “No one can interfere with the independence of the judiciary.” But Jourová, according to Pogačnik, came to the Slovenian Supreme Court as a superior. That is why point 3 of the document in question is crucial. “And when this 3rd point is revealed, I estimate that this snowball, which was small at first and then became bigger when MEP Zver showed interest in Jourová … Then he asked for documentation and this snowball became even bigger and then even bigger when the European Commission violated the procedural rules, which is practically already proven. When this point is revealed, the snowball could become very big.”
As a consequence of this lawsuit, there could be major shifts in the understanding of the rule of law – even tectonic shifts.
Domen Mezeg
