CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … judicature carried out by means of the reference for a preliminary ruling 38 . The project of an international court outside the legal system of the Union was impracticable, an agreement limited to the Member States was chosen, in which the unified Tribunal is qualified not as an international court but as a common court to the contracting Member States, model of the Benelux Court of Justice 39 . The second example is found in the Banking Union and consists of the intergovernmental agreement to which the effectiveness of the single resolution mechanism for credit institutions has been subordinated. The solution adopted in these cases constitutes an unprecedented and worrying precedent: the effective application of a regulation is made dependent on the assumption-and, obviously, on the subsequent fulfillment-of international obligations contracted separately by the participating Member States through an external agreement Union order. With regard to the agreement on the Single Resolution Fund, the legal reasons given to support this choice appear to be very doubtful 40 . The use of an intergovernmental agreement was justified by the argument that the Union would not be competent to levy financial resources from the banks 41 . However, this premise does not appear to be correct: not only can a regulation directly impose obligations on private entities, but it may also impose a tax levy whose revenue is destined to flow into the Union’s resources, according to a scheme moreover, for some time now consolidated and applied, in particular, to customs duties levied on entry of goods at the external border of the Union and VAT-based own resources 42 . The Single Resolution Fund, the vital component of the Single Resolution Mechanism as devised by the EU Regulation No. 806/2014 43 , was adopted as an international agreement signed by all the EU Member States, except Sweden and the United Kingdom, on 21 May 2014. While recognizing the supplementary nature of the conventions to the Community legal order, he denounced the creation of a “new body of European law” lacking “the guarantees of uniformity and effectiveness, which in the case of Community Law proper, result from the 38 CJEU, Opinion 1/09, op. cit., parr. 79ss. 39 The classification as a court common to the Member States to overcome concerns about safeguarding the autonomy of EU law was indirectly suggested by the Court itself, which distinguished the planned European and Community Patents Court by the Court of the Benelux, ‚since the latter is a judicial body common to several Member States and, consequently, is situated in the jurisdictional system of the Union, its rulings are subject to procedures capable of ensuring the full effectiveness of the Union‘s rules‘ (Court of Justice) , Opinion 1/09, cited above, par. 82). Moreover, the compatibility of the solution implemented with the founding treaties has been questioned, above all in relation to the possible violation of the exclusive external competence of the Union. 40 See in particular the analysis of: VERHELST, S. Assessing the single supervisory mechanism. Passing the point of no return for Europe‘s banking Union , Egmont paper n. 58, The Royal Institute for International Relations, Bruxelles, June 2013. 41 SCHÄUBLE, W. Strategy for European eecovery, keynote speech at the fifth Bruges European Business Conference, 27 March 2014, 5. 42 FABBRINI, V. F. On banks, courts and international law. The intergovernmental agreement on the single on the single resolution fund in conext, in op. cit., pp. 454ss. 43 Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010, OJ L 225, 30. 7. 2014, p. 1–90. see WELLERD, A. Organisation of banking regulation, ed. Springer, Berlin, 2015, pp. 70ss. HAENTJENS, M., WESSELS, B. Research hanbook on crisis management in the banking sector , Edward Elgar Publishers, Cheltenham, 2015. LOUIS, J.V. La difficile naissance du Mécanisme Européen de Résolution des Banques, in Cahiers de Droit Européen , 1, 2014.


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