CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … exclusive competence of the Union also meets a limit which can be deduced from the system of competences. In line with the parallelism that has been drawn between the collective action of the States and the unilateral exercise of their powers internally, it must be considered that the conclusion of these agreements finds a limit in the pre-emption principle: where the Union has exercised a competence conferred non-exclusively by the Treaties, by adopting legislation, the exercise of the competence of the Member States is precluded 58 . Apart from the articulation of the system of powers, limits to agreements between Member States can be derived from the principle of the primacy of Union law over internal law. It should be noted that, although primacy and pre-emption are closely connected and are often described as two sides of the same coin, they operate on different levels: while the pre-emption concerns the exercise of competences, the primacy is a principle designed to resolve conflicts between norms 59 . The joint reading of Article 2(2) TFEU pre-emption related to shared competence and Article 3(2) TFEU supervening exclusivity has generated some confusion. This convoluted picture was also not clarified in C-114/12 European Commission v. Council of 4 September 2014, where the CJEU scrutinized the joint operation of the pre-emption principle applying in the case of shared competences and the supervening exclusivity regulated by Article 3(2) TFEU. In order to explain the possible intersection of the different scopes of the two articles, the CJEU looked at Protocol No. 25 attached to the Treaties on the exercise of shared competences and stated that: “(…) Protocol (No 25) on the exercise of shared competence, (…), the sole Article of which states that, when the Union has taken action in a certain area, the scope of this exercise of competence only altered” 60 . Did the CJEU want to confirm that the scope of supervening community competences can exceed the scope of the shared community competences defined by Article 4(1) TFEU? Does the double negative resulting from the joint reading of Article 4(1) TFEU and the aforementioned Court finding mean that that the supervening exclusivity of Article 3(2) applies also to the supportive and complementary competences referred to in Article 6 TFEU to which the pre-emptive effects of articles 2(2) TFEU do not apply? This assumption is however hard to maintain in the light of the case law which Article 3(2) TFEU seems to codify. Quite certainly this was not the expected outcome in case European Union v. Council, (C-114/12). It is more likely that the CJEU referred to the possibility of an EU competence that is shared internally whilst being exclusive externally. The SSM is based on Article 127(6) TFEU and therefore falls under EU exclusive monetary policy. The twin instrument of the SRF, the Single Resolution Mechanism 61 , was established under Article 114 TFEU, which 58 The pre-emption does not operate at the level of attribution of competence. This is confirmed by the express provision of the reversibility of the pre-emption principle which is achieved if the Union has ceased to exercise its competence (Article 2 (2) TFEU), for example as a result of the repeal of an act or ascertaining his invalidit. CAPELLETTI, M., SECCOMBE, M., WEILER, J.H.H. (eds), Integration through law: Europe and the american federal experience , op. cit., “(…) Pre-emption and supremacy represent, in a sense, two sides of the same coin. Both doctrines are designed to ensure the primacy of the Community over the Member States (…)”. 59 ARENA, A. Exercise of EU competences and pre-emption of member States’ powers in the internal and the external sphere: Towards a “grand unification”?, in Yearbook of European Law , 35, 2016, pp. 4ss. 60 ECLI:EU:C:2014:2161, published in electronic Reports of the cases. In the same spirit see also: C-897-19 PPU, Ruska Federacija of 2 April 2020, ECLI:EU:C:220:262 not yet published. For further analysis see also: GARBEN, S., GOVAERE, L. The division of competences between the European Union and the member States, op. cit., CZUCZAI, J., NAERT, F. The European Union as a global actor. Bridging legal theory and practice. Liber amicorum of Ricardo Gosalbo Bono , ed. Brill/Nijhoff, Leiden, Boston, 2017, pp. 427ss. 61 WIGGINS, R. Z., METRICK, A. European banking Union B: The single resolution mechanism , in Yale School


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