CYIL vol. 12 (2021)
Dimitris Liakopoulos CYIL 12 (2021) pertains to “the approximation of provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market (…)” 62 . As a result of primacy, Union law takes precedence over agreements between Member States prior to the creation of the Communities or to the accession of the Member States concerned. The compatibility clause pursuant to art. 351, par. 1, TFEU 63 , which is without prejudice to the effects only of agreements concluded by Member States with third States before 1 January 1958 or before the date of accession to the Union and therefore constitutes an exception to the principle of primacy, does not apply to the cases in question. As established by the CJEU, art. 351, par. 1, TFEU 64 , whose function consists in safeguarding the rights that third States have accrued under international agreements with Member States and, mirroring their obligations toward third States, does not operate in relations between Member States 65 . According to our opinion art. 351(1) TFEU may not be invoked for an agreement that derogates from the core principles of the Union constitutional order nor is the provision applicable to agreements concluded solely by the Member States inter se . A violation of art. 351(2) TFEU (obligation to take all appropriate steps to eliminate incompatibilities between prior agreements and EU law) may at some point deprive the 62 PIRIS, J. C. The future of Europe: Towards a two-speed EU?, Cambridge University Press, Cambridge, 2012. PRETE, L., SMULDERS, B. The coming of age of infringement proceedings, in Common Market Law Review , 47 (1), 2010. RUFFERT, M. The European debt crisis and European Union law, op. cit., THYM, D., WENDEL, M. Preserver le respect du droit dans la crise: La Court de Justice le Mes et le mythe du déclin de la Communauté de droit, in Cahiers de Droit Européen , 48, 2012. TIMMERMANS, C. ECJ doctrines on competences in AZOULAI, L. (ed), The question of competence in the European Union, Oxford University Press, Oxford, 2014. ROUX, J. Droit général de l’Union européenne , LexisNexis, Paris, 2012. BERGER, M. Le parquet européen-Un nouvel acteur au sein du systéme juridictionnel de l’Union européenne, in Liber AmicorumVassilios Skouris, Bruylant, Bruxelles, 2015, pp. 89–98. FERRNFELD, H.H. Artikel 114 des AEUV, in SCHWARZE, J., BECKER, U., HATJE, A., SCHOO, J. EU-Kommentar , op. cit., pp. 1422ss. 63 In order to benefit from the derogation clause of art. 351 (1) TFEU, the agreement must have established an obligation that the Member State concerned cannot honor if it applies a norm of EU law fully. The CJEU has taken in consideration the proposals submitted by a Member State to modify two maritime IMO conventions, the Member State concerned argued that it could rely on the then art. 307 EC Treaty (now Article 351 TFEU) as it had become a member of the IMO before it joined the European Community. The CJEU did not accept thisargument, noting that the Member State had not established that it was required to submit the contested proposal by virtue of the IMO‘s founding documents or legal instruments drawn up by the organization. In case C-45/07, European Commission v. Greece of 12 February 2009, ECLI:EU:C:2009:81, I-00701, parr. 34–37 the CJEU held: “(…) that the Union legal order contains some core constitutional principles that form part of the „very foundations“ of that order, notably the protection of fundamental rights, and art. 351 TFEU may „in no circumstances permit any challenge“ to those core principles (…) Member States cannot invoke Article 351(1) TFEU in order to honor their obligations under the UN Charter, including binding decisions of the Security Council, if these obligations contravene basic fundamental rights and rule of law principles contained in the Union constitutional order (…)”, as we can see in the same spirit in the joined cases: C-415/05 P, Kadi & Al Barakaat Int‘l Foundation v. Council of 8 November 2008, ECLI:EU:C:2008:461, I-6351. 64 LIAKOPOULOS, D. Art. 351 TFUE, in HERZOG, P.E., CAMPBELL, C., ZAGEL, G. Smit & Herzog on the law of the European Union , ed. LexisNexis, New York, 2018. 65 CJEU, 10/61, European Commission v. Italy of 27 February 1962, ECLI.EU:C:1962:2, 1962 00873. ECKHOUT, P. European Union external relations law, Oxford University Press, Oxford, 2011. of Management, research paper, 2015/2. SKAURADSZUN, D. Legal protection against decisions of the single resolution board pursuant to art. 85 Single Resolution Mechanism Regulation, in European Company and Financial Law Review , 15 (1), 2018.
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