CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) loyalty cooperation should result in the conclusion of intergovernmental agreements likely to interfere with the exercise of the Union’s competence. Finally, it should be borne in mind that the dichotomy between duties of action (information, consultation, coordination of State action with that of the Union) and abstention obligations lends itself to ambiguity. The CJEU, although deriving from the principle of loyalty cooperation both obligations of action and obligations of abstention from the Member States, has not clearly distinguished the two categories. It could perhaps be argued that the obligation to abstain from unilateral action and the obligation to consult with the EC are two sides of the same coin, in the sense that the State should refrain from concluding the agreement until it has agreed on a shared position with the EC. The duty of abstention appears, however, more pervasive, because it is not limited to a mere obligation of means, as could be understood the duty of consultation. The opinion of those who believe that the principle of loyalty cooperation imposes an obligation to inform the EC and to consult with it also at an earlier stage than the onset of the obligation to abstention, at least from the moment when the EC initiated the legislative procedure. 6. Interim agreements and enhanced cooperation The possible alternativeness of different techniques of differentiated integration may occur if the agreement concerns a matter of concurrent competence between the Union and the Member States, but the conditions imposed by the Treaties for the establishment of enhanced cooperation appear to be excessively restrictive to the States interested in giving life to a more intensive form of cooperation 101 . The option of Member States to conclude international agreements among themselves should be limited to those matters in which enhanced cooperation can not be used 102 . According to this reconstruction, following the introduction of the institution of enhanced cooperation, the conclusion of agreements between Member States to give rise to forms of differentiated integration would be contrary to the principle of loyalty cooperation 103 or would violate the principle of institutional balance 104 . However, this is a poorly convincing 101 BERGER, M. Le parquet européen-Un nouvel acteur au sein du systéme juridictionnel de l’Union européenne, in Liber Amicorum Vassilios Skouris , op. cit., pp. 89-98. LOUIS, J.V. La pratique de la coopération renforcée, in Cahiers Droit Européen , 49 (2), 2013, pp. 277–291. FABBRINI, V.F. The enhanced cooperation procedure: A study in mutispeed integration , in CSF-research paper, 2012. ÖZLEM ULTAN, M. Enhanced cooperation in European Union law and its effect on the European integration, in International Journal of Social Sciences and Education Research , 3 (5), 2017, pp. 1814ss. PIRIS, J. C. The acceleration of differentiated integration and enhanced cooperation, in EI-working paper series n. 328, 2017. MARTUCCI, F. Les coopérations renforcées, quelques années plus tard: Une idée pas si mauvaise que cela ?, in A.A.V.V. Europe(s), Droit(s) européen(s)-Une passion d’universitaire. Liber amicorum en l‘honneur du Professor Vlad Constantinesco , ed. Bruylant, Bruxelles, 2015, pp. 396ss. 102 NISSEN, C. European defence cooperation after the Lisbon Treaty. The road is paved for increased momentum, in DIIS-paper, 2015. 103 CONSTANTINESCO, V. Les clauses de coopeération reinforcée, in Revue Trimestrielle de Droit Européenne , 33 (4), 1997, pp. 755ss. 104 FABBRINI, F. Economic governance in Europe. Comparative paradoxes and constitutional challenges , Oxford University Press, New York, 2016, pp. 194ss. According to the author: “(…) the idea that the member states remain free to conclude international agreements outside the legal system of the Union in so far as they do not violate EU law would be in contradiction with the principle of institutional balance, as freedom of the Member States to act outside the legal system of the Union would defeat the legislative function constitutionally attributed


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