CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … Member State concerned of the right to invoke Article 351(1) 66 . The CJEU was asked to assess the compatibility with the Treaties of international agreements aimed at widening the scope of the acquis communitaire to third Countries in a broader economic area. This compatibility assessment was carried out moving from the need to preserve the autonomy of the Community legal order as an “ordre juridique propre, issue d’une force autonome” 67 . In fact, the CJEU moved from the principle of autonomy to clarify the conditions under which delegations of authority to and from the Community may be possible and to ensure that the application of identically worded provisions stemming from different sources would not lead to the muddling of the different legal orders. 4. The principle of primacy and its reference to subsequent agreements In this regard, it is clear from the case-law that there is a general prohibition of agreements between the Member States which modify the founding treaties or which derogate from them. The CJEU has for some time asserted that the procedures for revising the treaties 68 , are taxable, which can not be surreptitiously circumvented by the conclusion of international agreements between Member States 69 . If all the Member States are not allowed to amend the treaties derogating from the procedures established for their revision, a fortiori can not be allowed to some of them derogate in their mutual relations. This principle was expressly stated by the CJEU in some rulings concerning the compatibility of international agreements between Member States with Union law. The inter se mixed agreements proposed in this section respond to this necessity. In this respect, a clause could provide that inter se mixed agreements are binding only on those Member States ratifying the agreement. Moreover, an additional clause could provide that “the expenditure resulting from implementation of the agreement, other than administrative costs incurred by the institutions, shall be borne by the ratifying Member States, unless all members of the Council, acting unanimously after consulting the European Parliament, decide otherwise (…)” 70 . In particular we could say that the case of inter se mixed agreements would be different since in addition to the unanimous consent by all Member 66 SCHWARZE, J., BECKER, V., HATJE, A., SCHOO, J. EU-Kommentar , op. cit. 67 WNZEN, T. From capacity to sovereignty: Legislative politics and differentiated integration in the European Union, in European Journal of Political Research , 55 (1), 2016, pp. 102ss. 68 CJEU, 43/75, Defreunne v. Sabena, of 8 April 1976, ECLI:EU:C:1976:56, 1976, 00455, parr. 56–58. POIARES, L.M., MADURO, P., AZOULAI, L. The past and future of European Union law. The classics of European Union law revisited on the 50 th Aniversary of the Rome treaty , Hart Publishing, Oxford & Oregon, Portland, 2014, pp. 274ss. 69 It is a hypothesis which has been named as: “révision froide des traités“ (PESCATORE, P. L’ordre juridique des Communautés européennes. Etude des sources du droit communautaire , ed. Bruylant, Bruxelles, 1971, pp. 144ss). It must be said, however, that this is a principle that is not always respected in practice: the EU-Turkey declaration of 18 March 2016 seems to be emblematic in this sense, which seems to present all the characteristics of an international agreement but has not been concluded according to the procedures laid down from the treaties (on the conflict between the agreement and the principle of the numerus clausus of the sources and procedures underlying the Defrenne ruling, as well as hints at the worrisome implications of wider scope that the practice in question suggests the future of the Union. 70 CREMONA, M. Member States as trustees of the Union interest: Participating in international agreements on behalf of the European Union, in ARNULL, A. et al. (eds.), A constitutional order of States: Essays in Honour of Alan Dashwood , Hart Publishing, Oxford & Oregon, Portland, 2011. DAWSON, M., DE WITTE, F. Constitutional balance in the European Union after the euro crisis, in Modern Law Review , 5, 2013.


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