223 Chapter 10 CROATIAN ACCESSION TO THE EUROPEAN UNION THE TRANSFORMATION OF THE LEGAL SYSTEM Sini a Rodin Faculty of Law Zagreb ABSTRACT Croatian membership in the EU is subject to the fulfilment of the legal and political obligations laid down in among other places the SAA the Stability and Association Agreement The implementation of the SAA depends on the definition of its position in the constitutional system of the Republic of Croatia including the ability for its provisions to be directly applied in EU and in Croatian courts the legal status of the bodies provided for in the SAA and the legal position and legal standing of the decisions taken by these bodies The implementation of constitutional changes is necessary for full membership of the EU and some changes are also necessary even for implementation of the SAA These are provisions that provide the legal basis for membership in the EU including the definition of the manner of making use of state sovereignty provisions that define in detail the legal status of international law and European primary and secondary law in the internal legal system of the EU and provisions that adapt the constitutional organisation of the Republic of Croatia to the conditions of associate or full membership of the EU optimise the functions of the institutions of state authority that will have to work in new conditions In an evaluation of the fulfilment of the conditions for membership in the 224 EU the criterion for evaluation of the extent to which the legal system is adjusted will not be only the contents of the legal standards but also the political economic and social matters that are governed by these legal standards Key words international law constitutional law direct effect sovereignty legal interpretation legal monism legal dualism division of power courts legal culture INTRODUCTION AND METHODOLOGICAL REMARKS It is an almost impossible task to make a diagnosis of the legal system of some country and compare it with the legal system of the EU Looked at from a methodological point of view such an effort is pointless and could possibly be useful only as an exercise in comparative law At the level of standards the demands that the legal system of every potential member state must meet are quite clear Applicant countries must unconditionally take on board the acquis communautaire the legal patrimony that is the totality of all the legal standards of the legal system of the EU Comparing any two legal systems that of a given country and that of the EU a meticulous investigator might without any doubt come to some knowledge about the similarities or differences in given legal rules but the results of such a comparative approach would have extremely little to say about the capacity of the state the legal system of which is at issue to become a member of the EU And how much the legal rules both national and supranational correspond to the social relationships that the applicant state would have to put in order is a completely different question A large number of the conditions that applicant states have to fulfil on the road to full integration into the EU are not to do with legal standards but rather relate to economics and politics Law then as discipline is an instrument for accomplishing them The characteristics of a legal system the features of a legal culture and the substance of legal institutes can certainly help or harm the social and economic processes but in and of themselves they are not criteria according to which it is possible to judge of the quality of a candidacy for EU membership 225 For example it is possible for the UK to fulfil the criteria for membership in spite of the fact that its legal system traditionally has no codex of fundamental rights and liberties while some applicant country will still not meet these criteria in spite of having comprehensive legislative regulation of this matter From this example it should be clear that through no analysis of legal standards will we be able to determine the level of preparedness of a given country for EU membership rather it is necessary to judge the extent to which criteria for membership are fulfilled in a material sense a precondition for which is the distinction of the letter of the law and reality Here it is necessary to make an important demarcation Some of the fundamental requirements for the rule of law such as the principle of the division of powers the democratic system multi party politics and the independence of the judiciary constitute the institutional context for a legal analysis and the regulation of the standards and they have to be taken into consideration staying all the way within legal methods As commenting on the distinction between the provisions of the law and the political Harvard professor David Kennedy observed American legal theory does not start with the founding fathers of the American Constitution Madison Hamilton and Jay but with Oliver Wendell Holmes who did not deal with the architecture of political but the analysis of legal institutes Holmes 1996 1997 Similarly it could be said that the legal theory of the European Community did not start with the ideological founders of the EU such as Ernst B Haas or Jean Monnet but probably with Joseph Weiler who was among the first to bring out the double aspect of supranationalist thinking the purely legal and the political Weiler 1982 The conceptual distinction of the regulatory and political aspects is relevant for the current analysis the subject of which should be defined not only as an estimate of the harmonisation of the political institutions and or legal standards of Croatian with the those of European law but also as an analysis of the working of the legal standards in the political social and economic context of rapprochement with the EU Here it is of minor importance whether some Croatian legal institute governs a given relationship in law in the same way as or in a different way from that in the EU the primary question is whether the given legal handling of a matter leads to real fulfilment of the criteria for membership This does not mean that I think a comparison of the legal solutions and the fulfilment of the formal criteria are not relevant for a judgement of the adjustment of a national legal system to the European system Precisely the opposite the formal criteria in the law are often topographical signs on the way towards full mem 226 bership and without their fulfilment the process
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