CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) institutional system of the Community” and warned against “the danger to the unity of the European legal system arising from the establishment of new rules which, precisely because of their international origin, are not subject to the system of institutional and, more especially, legal guarantees provided by the Treaty” 44 . An example of differentiated integration is not the decision of the Heads of State or Government, meeting within the European Council, concerning a new agreement for the United Kingdom in the European Union and attached to the conclusions of the European Council of 18-19 February 2016. This act, whose legal nature is debated because, on the one hand, it is not a decision of the European Council, but a decision taken by the Heads of State or Government meeting in the European Council, but on the other hand it is by some qualified, rather than as a treaty producing new legal obligations, as an “agreement on interpretation” 45 pursuant to art. 31, par. 3, of the 1969 Vienna Convention on the Law of Treaties 46 , not only is it concluded between all the Member States. To the extent that it is not merely a recognition of already existing rules, or does not aim to clarify their scope and meaning in an interpretative manner, the decision envisages the introduction of legislative amendments intended to apply to all Member States. The re-emergence of the phenomenon of inter-agreements leads us to question the limits that this practice encounters in the founding treaties. It should be noted that provisions in the treaties expressly prohibit the conclusion of international agreements between Member States expressly and in general terms. The only rule that introduces an explicit prohibition in this sense is contained in art. 344 TFEU 47 , which prohibits Member States from submitting disputes concerning the interpretation and application of the Treaties to external dispute resolution mechanisms with respect to the Union’s judicial system. This provision, the scope of which the CJEU has interpreted extensively 48 with a view to safeguarding the autonomy of the Union’s legal system, is clearly an obstacle to the conclusion of agreements between 44 BIEBER, R., MAIANI, F. Précis de droit européen , ed. Stämpfli, Berne, 2011. BLUMANN, C., DUBOUIS, L. Droit institutionnel de l’Union européenne , LexisNexis, Paris, 2013, pp. 478ss. BOUTAYEB, C. Droit institutionnel de l’Union européenne: Institutions,Ordre juridique et Contentieux , LGDJ, Paris, 2014, pp. 119–125. CLERGERIE, J. L., GRUBER, A., RAMBAUD, P. L’Union européenne , ed. Dalloz, Paris, 2014, pp. 543–545. DONY, M. Droit de l’Union européenne , Bruxelles, Editions de l’Université de Bruxelles, 2014. GAUTRON, J.C. Droit européen , Dalloz, Paris, 2012, pp. 24ss. 45 See in argument: ZHELYAZKOVA, A. From selective integration into selective implementation: The link between differentiated integration and conformity with EU laws, in European Journal of Political Research , 53 (4), 2014, pp. 727–746. 46 See the comments of ASCENSIO, H. Article 31 of the Vienna Conventions on the law of treaties and international investment law, in ICSID Review , 31 (2), 2016, pp. 368ss. 47 SCHWARZE, J., BECKER, V., HATJE, A., SCHOO, J. EU-Kommentar , op. cit. 48 CJEU, C-459/03, European Commission v. Republic of Ireland of 30 May 2006, ECLI:EU:C:2006:345, I-04635, parr. 126–129), and which precedes the conclusion of international agreements having the effect of depriving national courts of power to propose references for a preliminary ruling (opinion 1/09 of 8 March 2011, op. cit., par. 80). ORELLANA ZABALZA, G. The principle of systemic integration: Towards a coherent international legal order , LIT Verlag, Hamburg, 2012, pp. 62ss. CREMONA, M., THIES, A., WESSEL, R. A. The European Union and international dispute settlement , Hart Publishing, Oxford & Oregon, Portland, 2017. 3. The limits to the conclusion of inter-sectional agreements based on the system of competences and the principle of primacy


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