CYIL vol. 12 (2021)
CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … appear more dubious with regard to the TSCG, since most of the provisions included in the agreement could have been adopted by means of secondary legislation, when it is not even reproductive of rules already present in the legal order of the Union. The reasons for using an external instrument therefore seem to have to be found, in reference to the TSCG, mainly in the symbolic value of a new treaty, as well as in the need to overcome the obstacle represented by the United Kingdom veto, which would not have consented to a revision primary law or the use of the flexibility clause if not at the price of major concessions that the other Member States were not prepared to accept 11 . Furthermore, both for the ESMT and the TSCG the choice was justified because of the need for urgent intervention, incompatible with the time required by a revision of the treaties. The instrument of the international agreement appeared adequate, in this context, to respond to the need for speed, also with regard to the manner in which it came into force, which could have been subject to the ratification of a limited number of Member States. In speciem, the TSCG provision at issue establishes that the European Commission’s (EC) proposal or recommendation on the existence of an excessive deficit enters into force whenever there is no qualified majority of Member States opposing it and not, as set out in the Treaty on Functioning of the European Union (TFUE), when it is backed by a qualified majority of all Member States. The reverse-qualified majority vote was later introduced in the EU secondary norms, particularly in the Six-Pack 12 . The fact that these procedural rules have also been incorporated in EU secondary law does not dispel their incompatibility with published in electronic Reports of cases, par. 65: “(…) of course, Article 122 (2) TFEU gives the Union the power to grant timely financial assistance to a Member State in difficulty or is seriously threatened by serious difficulties due to natural disasters or exceptional circumstances they escape his control. However, as the European Council stresses in recital 4 of the Decision 2011/199, Article 122 (2) TFEU does not constitute an appropriate legal basis for the establishment of a stability mechanism such as that foreseen by that decision. Indeed, both the permanent nature of the envisaged mechanism and the fact that its activities are intended to safeguard the financial stability of the euro area as a whole do not allow such action by the Union to be carried out on the basis of that provision of the FEU Treaty (…). However, it should be noted that the Court did not rule out the use of the flexibility clause (see case T. Pringle, par. 67), which according to a part of the doctrine could have been legitimately used for the establishment of the mechanism of assistance (…)”. In argument see, SCHWARZ, M. A. A memorandum of misunderstanding-The doomed road of the European Stability Mechanism and a possible way out: Enhanced cooperation, in Common Market Law Review , 51, 2014, pp. 414ss., DIMOPOULOS, A. Taming the conclusion of inter se agreements, op. cit., pp. 291ss., HOFMANN, C. A legal analysis of the eurozone crisis, in Fordham Journal of Corporate & Financial Law , 18 (3), 2013, pp. 528ss., HERRMANN, C.W. Pringle v. Ireland. Case C-370/12, in American Journal of International law , 107 (2), 2013, pp. 411ss., BLANKE, H. J., VILLALÓN, P. C., KLEIN, T. Common European legal thinking. Essays in honour of Albrecht Weber , ed. Springer, Berlin, 2015, pp. 214ss., ROSAS, A., ARMATI, L. European Union constitutional law: An introduction , Hart Publishing, Oxford & Oregon, Portland, 2018, ARNULL, A., CHALMER, D. The Oxford handbook of European Union law , Oxford University Press, Oxford, 2015, ADAMSKI, D. Redefining European economic integration , Cambridge University Press, Cambridge, 2018, pp. 28ss. 11 We can define United Kingdom requests as unacceptable. See BARATTA, R. Legal issues of the fiscal compact, in DEWITTE, B., HÉRITIER, A., TRECHSEL, A.H. (Eds), The euro crisis and the state of European democracy , EUI, Florence, 2013, pp. 38ss., GORDON, M. The United Kingdom and the Fiscal Compact: Past and Future, in European Constitutional Law Review , 10, 2014, pp. 28 ss. VAN RAEPENBUSCH, S. Droit institutionnell de l‘Union européenne , ed. Larcier, Bruxelles, 2016, ANDENAS, M., DEIPENBROCK, G. Regulating and supervising European financial markets: More risks than achievements , ed. Springer, Berlin, 2016, pp. 295ss. 12 ROSAS, A. The status in EU law of international agreements concluded by EU Member States, in Fordham International Law Review , 34 (5), 2011, pp. 1304ss., PALMSTOFER, R. The reverse majority voting under the “six Pack’: A bad turn for the Union?, in European Law Journal , 20(2), 2014.
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