CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) States required by Article 352 TFEU in the Council, the ratifying Member States, to which the agreements de facto apply, would share with the Union the ownership of the joint action. Indeed, a significant advantage for the Member States to conclude an inter se mixed agreement, compared with straightforward EU law (whether or not via enhanced cooperation), would consist in a greater political ownership by the national political institutions of the EU integration project pursued by means of these integration venues. This is a question that the CJEU has faced for the first time in the Matteucci judgment. The CJEU shared this argument, stating that “the application of Community law could not be compressed due to the fact that it could affect the implementation of a cultural agreement between two Member States” 71 . This reconstruction was confirmed in the subsequent Gottardo case, relating to a similar event, although it concerns a bilateral agreement concluded between a Member State and a third State 72 . Referring to a principle already enunciated in reference to the international agreements concluded by the Member States with third States 73 , the CJEU stated on this occasion that “in putting into practice the commitments made under international conventions, regardless of whether it is a Convention between Member States or between a Member State and one or more third countries, Member States (…) must comply with their obligations under Community law” 74 . According to our opinion the specific legal implications of the principle of EU supervening exclusivity in its original context, i.e. in the legal relationship between the Union and third countries. It is however even more arduous to understand the implication of the extension of the 3(2) TFEU ERTA-principle to inter se agreements 75 . Any legal inquiry cannot ignore the textual inaccuracies of the Article 3(2) TFEU. Adovace General Sharpston addressed these in her Opinion in C-114/121, European Commission v. Council of 4 September 2014 76 . She recognized that: “(…) the ‘substance of the agreement, rather than the identity of the contracting parties’, were the cornerstone of Article 3(2) test (…) it is probably of little consequence that Article 3(2) TFEU does not expressly state whether it is the conclusion of an international agreement ‘by the European 71 CJEU, 235/87, Matteucci of 27 September1988, ECLI:EU:C:2008:677, 05589, par. 14. CREMONA, M., KILPATRICK, C. European Union legal acts: Challenges and transformations , Oxford University Press, Oxford, 2018, pp. 152ss. 72 The question referred to the Court concerned the compatibility with the prohibition of discrimination of the non-extension to citizens of other Member States of the benefits deriving from a bilateral agreement on the coordination of social security systems concluded between Italy and Switzerland. 73 CJEU, C-307/97, Saint-Gorban ZN, of 21 September 1999, ECLI:EU:C:1999:438, I-06161, parr. 57ss. 74 CJEU, C-55/00, Gottardo, of 15 January 2002, ECLI:EU:C:2002:16, I-00413, par. 33. BASENER, N. Investment protection in the European Union. Considering European Union law , ed. Nomos/Dike, Baden-Baden, 2017. 75 CJEU, 22/70, European Commission v. Council (ERTA) of 31 March 1971, ECLI:E:C:1971:32, I-00553. See SCHÜTZE, R. Lisbon and the federal order of competences: A prospective analysis, in European Law Review , 33 (4), 2008, pp. 712ss. According to us the ERTA principle thus shows that supremacy has its limits with explicating important processes in Union law. The constraints on Member States brought about by the ERTA doctrine cannot be explained by recourse to supremacy, since at the core of the ERTA effect is a duty of abstention cutting across from the internal to the external level. In contrast, supremacy only applies to the matters internal to the Union. Thus, whereas the laws a Member State enacts in honouring an international agreement with a third State may not be applied against other Member States, the agreement itself cannot be set aside. 76 ECLI:EU:C:2014:224, published in electronic Reports of the cases, see in argument: EECKHOUT, P., LOPEZ- ESCUDERO, M. The European Union‘s action in times of crisis , Hart Publishing, Oxford & Oregon, Portland, 2016, pp. 148ss.

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