CYIL vol. 12 (2021)
CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … of EU law by other jurisdictions and to assure unity in the interpretation of EU law. The CJEU recognizes that Article 273 TFEU may be invoked also ex ante causa. It means that it is not necessary that the actual dispute has arisen. Second, the subject matter of the dispute concerns the Treaties, and a fortiori EU law, as the ESMT requires that the stability support be fully consistent with EU law. The CJEU would have made of the ESM Treaty had it been concluded under different circumstances. For example, in the event that the euro area Member States had deemed the establishment of the mechanism an important precautionary measure in times of economic stability 85 . Imagine for a moment that the EC had started infringement proceedings against these Member States, unlikely as that may seem. Facing similar legal questions, would the CJEU have come to the same conclusions as it did in Pringle or would it have sent the Member States back to the drawing board? However, the CJEU approach in Pringle contains a paradox: if-as is clearly established in application of the attribution principle-all competences not attributed to the EU belong to the Member States, and if indeed the EU has no competence to adopt a mechanism like the ESM, because then it would have been necessary to modify art. 136 TFEU, in order to give the Eurozone States the power to do something that already fell within their competence? It therefore seems clear that the CJEU decided the case under the pressure of the economic crisis 86 and the need to allow the adoption of any measure that could save the euro. But this ruling constitutes a precedent that could in the future open the doors to the application of the special procedure of revision also to other borderline cases that will probably be seen ex novo in the coming years. 5. The limits can be deduced from the principle of loyalty cooperation If the primacy imposes an obligation of compatibility of the agreement with EU law, further limits can be derived from the principle of loyalty cooperation. On the one hand, the obligation of the Member States to cooperate in achieving the objectives of the Treaties “assists” the principle of primacy by requiring them to “facilitate the application” of EU law which risks being hindered by the implementation of a international agreement between Member States 87 . On the other hand, the principle of loyalty cooperation is also the basis for obligations arising independently of the existence of a substantial incompatibility between EU law and the agreement 88 . In the context of external action, the CJEU has in fact identified a series of limits that the power of Member States to act on the international stage meets in the principle of loyalty cooperation. However, if it is liable to affect the power of external action by the Member States by restricting its scope or affecting its operation in the context of relations with third States, it is reasonable to expect that the principle of loyalty cooperation similarly conditions power Member States to conclude inter-sectoral agreements. Even where the Member States 85 ATTIK, J. From „non bailout“ to the European stability mechanism, op. cit., 86 ANTONIADIS, A. Debt crisis as a global emergency. The European economic constitution and other greek fables, in ANTONIADIS, A., SCHÜTZE, R., SPAVENTA, E. (eds) The European Union and global emergencies: A law and policy analysis , Hart Publishing, Oxford & Oregon, Portland, 2011. 87 CJEU, C-246/87, Matteucci, op. cit., par. 19. 88 VON BOGDANDY, A., IOANNIDIS, M. Systemic deficiency in the rule of law: What is this, what has been done, what can de done, in Common Market Law Review , 51, 2014, pp. 64ss. JAKAB, A., KOCHENOV, D. The enforcement of EU laws and values. Ensuring member States compliance, Oxford University Press, Oxford, 2017. KLAMMERT, C. The principle of loyalty in European Union law , Oxford University Press, Oxford, 2014.
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