Constitutional Court

KO131/18, Request for assessment of the conflict among the constitutional competences of the President of the Republic of Kosovo and the Assembly of the Republic of Kosovo, as defined in Article 113.3 (1) of the Constitution

KO131/18, Resolution on Inadmissibility of 6 March 2019, published on 25 March 2019

Keywords: conflict among constitutional competences, ratification of international agreements

The case was submitted by the President of the Republic of Kosovo (hereinafter: the President) with a request for assessment of the conflict among constitutional competence of the President and the Assembly of the Republic of Kosovo (hereinafter: the Assembly).

The allegation of conflict of constitutional competence was related to the constitutional competences set forth for the President and the Assembly in Article 18 [Ratification of International Agreements] of the Constitution. The President, as a party who raised an allegation for conflict between the President and the Assembly, claimed uncertainty over the constitutional competence for ratifying the Exchange of Letters between the Republic of Kosovo and the European Union. In this regard, the President claimed that it was not clear whether the:

“Exchange of letters between the President of the Republic of Kosovo (04.06.2018) and the High Representative of the European Union for Foreign Affairs and Security Policy (08.06.2018) [Fourth Exchange of Letters]:

• should it be ratified in the capacity of an International Agreement by the Assembly of the Republic of Kosovo by the two-thirds (2/3) vote of all deputies (in accordance with Article 18.1 of the Constitution) or
• should it be considered as ratified upon signature of the President (pursuant to Article 18.2 of the Constitution), due to the change of the role and mandate of the European Union Rule of Law Mission in Kosovo, as from now on it will have mainly an advisory and monitoring role.”

The Court noted that this is the first case with a request for assessment of the allegation of “conflict” among constitutional competencies and, in this respect, the Court clarified that the jurisdiction of the Court for the assessment of the conflict among the constitutional competencies is of a preventive character, namely constitutional control ex-ante, but that does not exclude an ex-post constitutional control.  In this regard, the Court emphasized the constitutional requirements established in Article 113.3 (1) of the Constitution, the legal requirements stipulated by Articles 31 and 32 of the Law and those foreseen in Rule 68 of the Rules of Procedure, as admissibility requirements which should be met in a case of conflict among constitutional competencies.

After the emphasis of each requirement [paragraphs 86-107] and the assessment of their applicability in the circumstances of the present case, the Court concluded  that although the case was submitted by an authorized party, namely the President – who claimed a conflict among his constitutional competencies and the Assembly, he did not accurately specify what conflict exists between his constitutional competences and those of the Assembly, despite the Court’s request to clarify his Referral initially brought in the form of the constitutional question under Article 84 (9) of the Constitution. The President, as the Applicant of this Referral, did not submit sufficient useful information about the “assumed” or “alleged conflict”, nor did he “accurately specify what conflict exists among the constitutional competencies” of the President and the Assembly.

Therefore, the Court, by majority, declared the President’s Referral for an alleged conflict among his constitutional competencies and the Assembly inadmissible for review on merits.