The whole letter can be seen below:
Thank you for your letter of 18th February, which follows up to our phone call of 10th February, and restates the firm commitment of BiH to its EU perspective. Let me reassure you: the main objective of the EU remains ensuring the country’s irreversible progress to the EU membership. Unfortunately, actions taken by Republika Srpska (RS) entity recently run contrary to the Constitution of BiH and are putting in jeopardy BiH as a single, united and sovereign country, with a future within the EU.
At the Foreign Affairs Council on 21st February, all EU Foreign Ministers expressed strong concern about the situation in BiH. The leadership of RS have been blocking the functioning of State institutions for several months, and slowly but steadily rolling back 26 years of reforms since the Dayton Peace Agreement, with the recent adoption of pieces of legislation setting up parallel institutions in the fields of justice and medicine.
Attempts to legitimise these steps as a return to the original Dayton, claiming that these are in line with the Constitution of BiH as agreed 26 years ago, do not stand scrutiny. The Constitution explicitly provides that the distribution of responsibilities among the levels of government may evolve over time, and is very clear on how the State can assume competences, including via transfer agreements signed by the entities. The Constitutional Court of BiH – as the only authority competent to interpret the Constitution – has also confirmed that an area transferred to the State level becomes a State competence. The Constitution does not provide for a procedure for reverting the transferred competences to the entities such a procedure could in any case not exclude the participation of State institutions. Unilateral steps to revert the outcome of transfer agreements are unlawful and challenge the constitutional order of BiH.
Beyond the obvious lack of a legal basis, the actions initiated by RS also bear important consequences for the country and for its citizens. Establishing a separate RS Agency for Medicinal and Medical Devices would undermine the single economic space, create legal uncertainty and have an inevitable negative impact for patients and businesses. The Agency for Medicinal Products and Medical Devices of BiH Agency established in 2009 as part of the acquis approximation process under the Stabilisation and Association process, as the relevant EU legislation requires the establishment of a national competent authority responsible for market authorisation in order to secure functional, coordinated and uniform system for regulation of medications and medical devices, supervise a single market for these products and ensure their availability on the entire territory of a country.
Withdrawal of RS representatives from the High Judicial and Prosecutorial Council of BiH (HJPC BiH) would be incompatible with BiH’s EU integration. This would jeopardize the functioning and role of the HJPC BiH, thereby jeopardizing the rule of law and the fundamental rights of all citizens of BiH.Withdrawing from the HJPC BiH, courts and prosecutors’ offices in RS would also lose access to IT infrastructure, including a common electronic case management system, and would have to return to manual procedures. This would seriously affect the efficiency of the judicial system, generating delays and denial of justice to the detriment of citizens and the economy. Such moves significantly undermine BiH’s EU accession prospects.
With the rule of law as a cornerstone of EU enlargement, the establishment of the HJPC BiH was one of the conditions set by the European Commission in 2003 for the start of negotiations on a Stabilization and Association Agreement, which is the legal basis for BiH’s EU accession process. The HJPC BiH has a key function to guarantee the independence, integrity and accountability of the judiciary throughout the country, unifying procedures for the appointment and accountability of members of the judiciary, thus guaranteeing the equality of citizens before the law throughout BiH.
As pointed in the European Commission’s Opinion on BiH’sapplication for EU membership, the country needs to improve the functioning of the judiciary by adopting a new law on the HJPC and a new law on BiH courts in line with European standards. The EU has been discussing these issues with your representatives for years in the context of a structured dialogue on justice. However, we have not seen a political commitment to initiate these reforms, even for the adoption of urgent changes to the integrity of the HJPC Law. This is where the focus should be.
Taking all this into account, we call on you and the leaders of RS to stop any legislative and political initiative to return to the so-called “original Dayton”, and to respect the BiH Constitution and state competencies. The EU does not question the principle of the constituent people or the structure of Dayton, however, as an EU-seeking state, the institutional and decision-making structures in BiH must be progressively adjusted to take into account EU requirements and effectively participate in the EU decision-making and fully implement and enforce the acquis.
I do understand the concerns expressed in your letter regarding a number of issues related to the functionality of BiH. As I have said many times, I firmly believe that the political crisis can be overcome by continuing the political dialogue. Open issues that cause you concern should be discussed in state institutions and with full respect for the constitutional and legal framework and procedures, and not resolved by unilateral steps, which raise serious concerns about legality. Once RS officials return to state institutions and ensure they are fully operational, the EU stands ready to enable meaningful and intensive dialogue. If such a dialogue does not take place, and the actions towards the dismantling of state institutions continue to be carried out concretely, the EU will have no choice but to start thinking about using all other instruments within its framework.
At a moment when Russia is violating international law and peace in Europe by launching unprecedented military aggression against its neighbor, we must ensure stability and unity in the rest of Europe. Russia’s attack on Ukraine has consequences for the security and stability of the whole of Europe. We must stand together in defense of Ukraine’s territorial integrity and sovereignty, stated Josep Borrell Fontelles.