CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … The case-law referred to has obviously far-reaching implications for the power of the Member States to act on the international scene. On the one hand, it is worth noting that the CJEU, in the European Commission v. Luxembourg 96 and European Commission v. Germany 97 did not verify the actual existence of interference of the unilateral action of the Member States agreed with Union action. From this it appears that the unilateral initiative on the part of the Member States, when a concerted action by the Union is launched, constitutes in itself a violation of the duty of loyalty cooperation. On the other hand, the European Commission v. Sweden 98 has clarified that the adoption of a Council act is not required for the purpose of ascertaining the existence of a common strategy; at the same time, however, the mere presentation of a proposal does not seem sufficient, requiring an active involvement of the Council in the elaboration of a common strategy. If the considerations made so far in the context of the interim agreements are transposed, some useful clarifications can be drawn up in order to determine the extent and effects of the principle of loyalty cooperation in relation to this phenomenon. Firstly, the principle of loyalty cooperation is capable of inhibiting the conclusion of an agreement between Member States, irrespective of its concrete interference with Union law rules, if the agreement is likely to hinder the development of an action-not however, in this case, in terms of relations with third States and international organizations, but on the internal level of the Union. It should be noted that this is a limit distinct from the primacy, which, unlike the principle of loyalty cooperation, is a criterion of conflict; but also distinct from the principle of pre-emption, which presupposes interference with a competence of the Union already exercised, when the limit here derives from the potential impact on the future exercise of jurisdiction 99 . In order that due to the principle of loyalty cooperation, specific obligations of abstention and cooperation arise for the Member States, the abstract provision of a (competing) competency of the Union is not sufficient. Instead, it is necessary that a common EU action has been launched or at least there is a common strategy. In the PFOS case, the CJEU made it clear that there is no need for a Council decision, but, as noted, the case-based approach focusing on the circumstances of the particular case followed in the ruling does not help to clarify in general terms what it is necessary for a common strategy to emerge 100 . To this end, as mentioned, the sentence seems to require involvement of the Council, a solution that appears moreover consistent with the function of this institution in the context of external relations: since it is the Council that decides both on the opening of negotiations and on the conclusion of international agreements, it is understandable that a common EU strategy can not be inferred from the EC initiative alone. By transferring this criterion internally and applying it to legislative procedures, it is plausible that the exercise by the EC of the power of initiative can not in itself be considered sufficient to inhibit the conclusion of an agreement between Member States on the same subject. However, if a proposal has already been approved at first reading by the European Parliament and is being examined by the Council, the principle of

96 CJEU, C-473/93, European Commission v. Luxembourg , op. cit. 97 CJEU, C-433/03, European Commission v. Germany , op. cit. 98 CJEU, C-246/07, European Commisson v. Sweden , op. cit.

99 The distinction is set out in the Opinion of Advocate General Maduro concerning the PFOS case: conclusions of Advocate General Maduro of case C-246/07, op. cit., parr. 46ss. VAN ELSUWEGE, P. Commission v. Sweden . Case C-246/07, op. cit. 100 THIES, A. Le devoir de coopération loyale dans l’exercice des compétences externes de l’Union européenne et des Etats membres, in NEFRAMI, E. (dir.), Objectifs et compétences dans l’Union européenne , op. cit., pp. 336ss.


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