CYIL vol. 12 (2021)
Dimitris Liakopoulos CYIL 12 (2021) The ability of Member States to conclude inter-sector agreements is conditioned by the attribution to the Union of some exclusive competences. The Member States can not conclude international agreements on these matters with each other, as they have been deprived of the power to exercise the same power, through the adoption of domestic legal acts, as a result of the granting of exclusive competence to the Union. Collectively, through the conclusion of international agreements 52 . The only exception would seem to be able to recognize, on an analogical basis, in the hypotheses indicated by art. 2, par. 1, second part, TFEU 53 , which gives Member States the power to act individually in matters falling within the exclusive competence of the Union if it is authorized by it or to implement acts of the Union. The discourse is more complex where it concerns matters of non-exclusive Union competence. In fact, in areas where the Union has a competing competence with that of the Member States, or a competence of support, completion and coordination with respect to their action, the Member States can exercise their competence collectively. This distinction according to the nature of the jurisdiction has been repeatedly affirmed by the CJEU with specific reference to the conclusion of international agreements between Member States. In the Bangladesh case 54 , the CJEU had been challenged by an appeal for annulment brought by the European Parliament against an act, allegedly adopted by the Council, concerning the granting of special aid to that third State 55 . It considered the appeal inadmissible on the ground of the nature of the contested measure, noting that it was not a decision of the Council, but an act adopted collectively by the Member States. The CJEU stated that this action did not conflict with Union law, provided that the matter did not fall within the exclusive competence of Union 56 . This conclusion was reiterated, even more clearly, in a subsequent case also related to the development aid sector 57 . However, the admissibility of the use of international agreements between Member States in matters not covered by the 52 In this sense, the statement contained in the AETS ruling that Member States can not ‚act outside the common institutions‘ in matters falling within the exclusive competence of the Community must be understood. CJEU, 22/70, European Commission v. Council of 31 March 1971, ECLI:EU:C:1971:32, 1971 00263, par. 52. This principle was subsequently developed by the jurisprudence with specific reference to the conclusion of agreements between Member States. TÜRK, A. H. Judicial review in European Union law , Edward Elgar Publishers, Cheltenham, 2010, pp. 12ss. GARBEN, S., GOVAERE, I. The division of competences between the European Union and the member States , Hart Publishing, Oxford & Oregon, Portland, 2017. 53 BOUTAYEB, C. Droit institutionnel de l’Union européenne: Institutions, Ordre juridique et Contentieux , op. cit., 54 CJEU, joined cases: C-181/91 and C-248/91, European Parliament v. Council and Commission , ECLI:EU:C: 1992:520, I-03685. 55 KRISLOV, V. S., EHLERMANN, C.D., WEILER, J.H.H. The political rrgans and the decision-making process in the United States and the European Community, in CAPPELLETTI, M., SECCOMBE, M., WEILER J.H.H. (eds.), Integration through Law: Europe and the american federal experience, Vol. I, Methods, tools and Institutions, political organs, integration techniques, and judicial process , Columbia University Press, New York, 1986, pp. 3ss. 56 CJEU, joined cases C-181/91 and C-248/91, European Parliament v. Council and European Commission of 30 June1993, ECLI: EU:C:1993:271, par. 16: “(…) it should be recalled that in the field of humanitarian aid the Community‘s competence is not exclusive and that therefore it is not forbidden for Member States to exercise their powers in this field collectively within the Council or outside it (…)”. BUGA, I. Modification of treaties by subsequent practice, Oxford University Press, Oxford, 2018. E. KORKEA-AHO, Adjudicating new governance. Deliberative democracy in the European Union, ed. Routledge, London & New York, 2015. 57 CJEU, C-316/91, European Parliament v. Council of 2 March 1994, ECLI:EU:C:1994:76, I-00625, par. 26: “(…) owing to the non-exclusive nature of the jurisdiction, the Court concluded that ‚Member States have the power to enter into commitments with regard to third parties, either collegially or individually, or even together with the Community (…)”.
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