CYIL vol. 12 (2021)
CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … thesis, since it is the literal tenor of art. 20, par. 1, TEU (“Member States (…) may appeal (…)) both teleological and systematic considerations indicate that the treaties constitute the use of enhanced cooperation as a mere faculty and not as an obligation 105 . In speciem, art. 20 (1) TEU states that any form of enhanced cooperation shall be open to all member States. As regards the Rome III Regulation 106 we can conclude that not all member states took the opportunity to join due to various reasons, but it was always possible for them to join. The working method of the enhanced cooperation procedure entails that member states who do not know (yet) whether they want to join can still engage in the Council discussions. By means of this procedure it is still possible for a member state to join the discussions and to decide to join the regulation if its wishes are established. This matches the requirement of TFEU Article 328 that states that enhanced cooperation, when it is established, shall still be open to all member States 107 . On the one hand this seems to justify the openness and equality principle of the member states in enhanced cooperation which can be typed as something that is beneficial towards equality. On the other hand, as we have seen in the case of Malta, this can result in situations where member states try to regulate the course of a proposal that is beneficial only to them. Thus, a careful approach towards the extent of openness in enhanced cooperation should be taken. The incorporation of Article 118 (2) TFEU in the Lisbon Treaty that requires unanimity on the language regime marks the importance and attempts of the member states to reach unanimity. Even among the respondents there is still hope that Spain (and Croatia) would eventually join so that uniform agreement could be reached. This is in contrast with Rome III where uniform agreement seems far more to the European Parliament by art. 14 TEU. However, this reconstruction seems, according to the writer, based on a questionable assumption. Although the treaties recognize the European Parliament as a general co-legislator, they outline a system of competences based on the principle of attribution: well, if in the matters of concurrent competence the Member States are free to act in isolation, the extent to which the Union has not exercised its competence, the same conclusion should apply to the action which they exercise collectively through the conclusion of international agreements. Moreover, as will be observed, the limits to the conclusion of agreements that can be inferred from the primacy and from the principle of loyalty cooperation allow to avoid a prejudice of the institutional equilibrium (…)”. 105 EHLERMANN, C.D. Différenciation, flexibilité, coopération renforcée: les nouvelles dispositions du traité d‘Amsterdam, in Revue du Marché Unique Européen , 3 (1), 1997, pp. 66ss. MARTÍNEZ CAPDEVILA, C. Son los acuerdos ‚inter se‘ una alternativa a la cooperación reforzada en la UE?, in Revista Espaňola de Derecho Europeo , 40, 2011, pp. 427 ss. EDITORIAL COMMENTS, Enhanced cooperation: A Union à taille réduite or à porte tournante? In Common Market Law Review , 48 (3), 2011, pp. 318ss. KUIPERS, J. The law applicable to divorce as a test ground for enhanced cooperation, in European Law Journal , 19 (1), 2012, pp. 22ss. PEERS, S. Divorce European style: The first auhotrization of enhanced cooperation, in European Constitutional Law Review , 6 (2), 2010, pp. 340ss. 106 Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. See MÖRSDORF-SCHULTE, J. Europäisches internationales Scheidungrecht (Rom III), in Rabels Zeitschrift für ausländisches und internationales Privatrecht , 77, 2013, pp. 789ss. DEVERS, A., FARGE, M. Le nouveau droit international privé du divorce: à propos du réglement Rome III sur la loi applicable au divorce, in La Semaine Juridique-Edition générale , Paris, 2012, pp. 1277ss. BOUREL, P., DE VAREILLES-SOMMIÉRES, P., LOUSSOUAR, Y. Droit international privé (10e édition), ed. Dalloz-Precis Dalloz, Paris, 2013. LEMOINE, B. Rome III Regulation. Getting divorced in Europe, in GIEGERICH, T., SCHMITT, D. C., ZITMANN, S. Flexibility in the EU and beyond , ed. Nomos, Baden-Baden, 2017, pp. 252ss. LANGHENDRIES, B. La loi applicable au divorce à l‘aune du réglement Rome III, in Revue du Droit des Étrangers , 94, 2012, pp. 5ss. 107 LIAKOPOULOS, D. Art. 328 TFUE, in HERZOG, P. E., CAMPBELL, C., ZAGEL, G. Smit & Herzog on the law of the European Union , ed. LexisNexis, New York, 2018.
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