CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) mechanism such as the ESM is the sole responsibility of the Member States, proceeding subsequently. to verify that the agreement establishing the ESM was compatible with the founding treaties of the Union. The T. Pringle judgment also makes it possible to derive some important clarifications on the scope of the pre-emption principle and on the concrete implication of primacy in relation to the conclusion of inter-sector agreements. The conditionality attached to the granting of financial assistance by the ESM is in fact closely related to compliance with the Union rules on the requirements of stability of public finances and the coordination of economic policies 82 . Therefore, if the CJEU had interpreted the pre-emption in its strictest sense-in the sense of the so-called field pre-emption, according to which the Union’s intervention “occupies” a certain sector entirely, preventing Member States from legislating in their turn in the same area-it would probably have ascertained the partial overlap between the scope of the ESMT and EU law and excluded that the Member States could conclude the agreement. On the other hand, the CJEU has verified the actual impact of the agreement on the competences of the Union and its institutions, in order to exclude the existence of incompatibility. In other words, the approach followed by the T. Pringle judgment seems to be oriented towards the model of the so-called rule pre-emption: the conclusion of an agreement between Member States should only be precluded if the agreement contains provisions conflicting with EU law, whereas the mere existence of EU- law rules in the same field is not in itself sufficient to make the agreement incompatible with the Treaties 83 , a conclusion that requires a more specific analysis in the light of the primacy principle. The CJEU has not explicitly employed it or clarified its normative contents. The Lisbon Treaty has now confirmed the premises of the doctrine through the general provisions of the TEU and TFEU on the division of competences between the Union and the Member States. These provisions are complemented by the Protocol on shared competences attached to the Lisbon Treaty. The Treaty provisions focus on legislative competences, which have been the main focus of scholarly discussion, too. However, the issue of pre-emption can be extended to Member States’ treaty-making power, as well: it is-at least in most cases- irrelevant whether legally binding acts are adopted by Member States acting separately or jointly through agreements inter se. According to us the case Pringle sheds some light on the interpretation of Article 273 TFEU. This provision affirms that the CJEU „shall have jurisdiction in any dispute between Member States which relates to the subject matter of the Treaties if the dispute is submitted to it under a special agreement between the parties” 84 . It serves to avoid a divergent interpretation of misunderstanding. The doomed road of the European stability mechanism and a possible way out: Enhanced cooperation, in Common Market Law Review , 51 (4), 2014, pp. 392ss. 82 AZOULAI, L. The many visions of Europe. Insights from the reasoning of the European Court of Justice in external relations law, in CREMONA, M. (ed), The European Court of Justice and external relations: Constitutional challenges , op. cit., 83 DIMOPOULOS, V. A. Taming the conclusion of inter se agreements, op. cit., pp. 298ss. If this reconstruction is correct, its implications are even more relevant to the TSCG. It is here even more clear, in fact, to overlap between obligations imposed by the agreement and Union law rules governing the same cases, imposing requirements on the stability of public finances, providing mechanisms for the coordination of economic policies and introducing instruments for control and penalty for excessive public deficits. See also in argument: BINDER, J.H. Systemkrisenbeweältigung durch Bankenabwicklung? Aktuelle Bemerkungen zu unrealistischen Erwartungen, in Zeitschrift für Bankerecht und Bankwirtschaft , 29 (2), 2017, pp. 59ss. 84 ATTIK, J. From „non bailout“ to the European stability mechanism, in Fordham International Law Journal , 39 (5), 2016, pp. 1206ss.


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