CYIL vol. 12 (2021)
CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … Member States which have the effect of removing jurisdiction from the Court they are due to it under the treaties. Apart from this hypothesis, however, the question of the admissibility of interim agreements and their possible effectiveness must be resolved, in addition to and even more so than on the basis of the relevant rules of international law 49 distinguishes the reciprocal relations between States parties to the two treaties, in which the restricted agreement prevails, from their relations with the States parties to the multilateral treaty only, which are governed by the latter, in application of the principle of relativity of the effects of the treaties. And the role of these CJEU agreements? According to our opinion the case of partial inter se agreements thus constitute a way to recreate the “old-fashioned flexibility“ that was common in the pre-Amsterdam framework of closer cooperation. The parallel agreements are considered to be more problematic with regards to the circumvention of the EU procedures since they could involve so-called “instrumental differentiation”. The purpose pursued by the inter se agreements which is common to the Member States and to the EU may give guidance on the choice of the suitable for the inter se mixed agreements. In the EU Treaties, a “flexibility clause” was envisioned to bridge the gap between the Treaties’ objectives and the specific powers assigned to the Union. This clause is enshrined in Article 352 TFEU, which serves to reduce the divide between the Union’s jurisdiction, defined by its aims, and the specific powers conferred to it 50 . Although EU law is itself based on international agreements-which makes it difficult to conceive the relationship between the founding treaties and other international agreements concluded by the Member States in hierarchical terms-the reconstruction that one is about to undertake can not be just as international law is concerned, but must take account of the particularities of the European legal system, in particular as regards relations between the Union and the Member States. In this regard, it seems appropriate to start from the following observation: however intense the link they may present with EU law, the agreements which Member States conclude between them always constitute an exercise of state competences 51 . This consideration suggests that the collective action of the Member States can be equated with the exercise by them of their internal competence, with the consequent application of the same limits that operate in that context. 49 On the one hand, the art. 41, par. 1 of the 1969 Vienna Convention on the Law of Treaties admits the conclusion of a “restricted” agreement with the aim of modifying a multilateral treaty only in inter-sector relations 65 in two hypotheses: the first is that in which the possibility of such a modification is foreseen by the treaty (Article 41, par. 1, lett. a); the second is that in which the amendment is not prohibited by the treaty, provided that it does not prejudice the enjoyment of the rights deriving from the treaty by the other parties or the fulfillment of their obligations and ‚does not relate to a provision from which may derogate without there being any incompatibility with the effective implementation of the object and purpose of the treaty (Article 41, paragraph 1, letter b). On the other hand, as regards the effects of the restricted treaty. 50 LIAKOPOULOS, D. Art. 352 TFUE, in HERZOG, P. E., CAMPBELL, C., ZAGEL, G. Smit & Herzog on the law of the European Union , ed. LexisNexis, New York, 2018. 51 For this reason, attempts to bring certain agreements between Member States into Union law, as a form of primary legislation that would stand in an intermediate position between the founding treaties and secondary law, do not seem to be acceptable. See EIJSBOUTS, W. T., REESTMAN, J.H. In search of the Union method, in European Constitutional Law Review , 22, 2015, pp. 431ss.
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