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Does the Serbian Constitution Need to be Amended in the EU Accession Process?

14.09.2016

The Republic of Serbia has embarked on EU accession negotiations. Given that EU Member States have to secure the full and proper enforcement of the EU acquis in their territory from the moment they accede to the EU, the Constitution of the Republic of Serbia will have to be amended in order to fulfil this obligation.


Under Article 194 of the Serbian Constitution, the Constitution is the highest law of the land; ratified international treaties and generally accepted rules of international law shall be part of Serbia’s legal order; and, ratified international treaties may not be in contravention of the Constitution.


The Treaty of Accession to the EU and the obligations arising from EU membership will have to be in accordance with the Serbian Constitution for the Treaty of Accession to be ratified by the Serbian parliament and enter into force. This will not be possible unless the Serbian Constitution is amended, as some of the obligations arising from the Treaty will not be in accordance with the Constitution as it stands now. The Constitution will clearly have to be amended given that these obligations are already well-known.


The following two types of amendments to the Constitution have to be made:


The first type of amendments had to be made by nearly all EU Member States during or after their accession. They include the introduction of the so-called “integration clause” ensuring that the decisions of EU bodies and EU law they lay down can be directly applied in the territory of the Republic of Serbia and take precedence over the national legislation, as well as obligations arising from the EU’s political order, notably obligations arising from the body of rights regarding so-called “European citizenship”, which primarily entails to the EU citizens’ active and passive rights to vote in elections in Serbia, equal to Serbian nationals.


The second type of amendments are those that must be made because of the specific features of Serbia’s constitutional order. They include amendments to ensure full judicial independence that are defined in Negotiation Chapter 23 - Judiciary and Fundamental Rights. They also include potential amendments to the Constitution aimed at strengthening the realisation of national minority rights in Serbia, as well as amendments that may be required as a consequence of the top-level dialogue between Belgrade and Priština on the normalisation of relations.


This Policy Paper shows that the Constitution will have to be amended at least twice and that a referendum on Serbia’s accession to the EU will have to be held, as the Government already stressed at the opening of the accession talks in 2014. The Paper includes recommendations for civil society on how to involve itself in amending the Constitution, whilst highlighting that organised civil society support will be of major relevance in mobilising the public to vote at the referendum on such an important and far-reaching issue, such as Serbia’s accession to the EU. 

 

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