CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … Union’ or ‘by the Member States’ of which it must be established that it ‘may affect common rules or alter their scope’ (…)” 77 . The case-law cited above also clarified that the Member States can not derogate, by means of inter-agency agreements and in their application, not only to the Treaties, but also to all secondary law, including the acts adopted after the conclusion of the agreement 78 . However, this solution is fully consistent with the primacy of EU law on the domestic law of the Member States, of which it is only a demonstration. In other words, if Member States are not allowed to derogate from Union law-except where the latter allows it-by means of national measures, this is not equally permissible through the conclusion of interim agreements. Finally, the question arises whether the conclusion of international agreements between Member States encounters a limitation in the principle of primacy only if the Union has jurisdiction over the subject-matter of the agreement, or if that conclusion is imposed even if it falls within the exclusive residual jurisdiction of the Member States. The aforementioned “parallelism” between the internal and external competence of the Member States directs the stricter solution. The CJEU has indeed stated that national measures derogating from it fall within the scope of Union law 79 , regardless of the existence of Union regulatory power in the subject matter of the national measure. The reconstruction proposed is reflected, in terms of the relations between inter-cant agreements and Union law, in the aforementioned Matteucci judgment, since in this case the agreement concerned a matter that undoubtedly fell within the exclusive competence of the Member States. According to the writer the restraints on treaty-making powers governing inter se treaties are not different from the limitations that Member States face with respect to the enactment and implementation of national law. This means that pre-emption and primacy standards should not be stricter than those applying to national law. The very fact that an inter se agreement is concluded is in breach of the European Union’s exclusive competence; in other areas- those outside the EU’s exclusive competence- inter se agreements are permissible in principle. Indeed, if Member States have preserved the competence to make domestic law in a given area, they can logically also exercise that competence together, by concluding an international agreement between themselves 80 . This approach was confirmed, albeit with some important clarifications, in the T. Pringle case 81 , in which the CJEU stated that the power to set up a permanent financial assistance 77 WNZEN, T. From capacity to sovereignty: Legislative politics and differentiated integration in the European Union , op. cit. Se also the case: C-724/18, Cali Apartments of 22 September 2021, ECLI:EU:C:2021:743, not yet published. 78 In the Matteucci case, the Regulation (CEE) n. Council Regulation (EC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (in OJ L 257 of 19 October 1968, 2) and following the bilateral convention in force between Germany and Belgium, dating back to 1956 ; in the Gottardo case, the regulation (EEC) n. Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed workers and members of their families moving within the Community (OJ L 149, 5 July 1971, 2). 79 CJEU, C-260/89, ERT of 18 June 1991, ECLI:EU:C:1991:254, I-02925, par. 43. 80 DEWITTE, B., BEUKERS, T. The Court of Justice approves the creation of the European Stability Mechanism: Pringle, in Common Market Law Review , 50, 2013, pp. 829ss. WELLERT, A. Organisation of banking regulation , ed. Springer, Berlin, 2015, pp. 70ss. HAENTJENS, M., WESSELS, B. Research handbook on crisis management in the banking sector , op. cit., 81 DE LHONEUX, E., VASSILOPOULOS, C. A. The European stability before the Court of Justice of the European Union. Comments on the Pringle case , ed. Springer, Berlin, 2013, pp. 60ss. SCHWARTZ, M. A memorandum


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