CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) out of reach. During the establishment of Rome III via enhanced cooperation, there were more serious concerns of the member states whether there should be a regulation on the law applicable on divorce at all. Member states that wanted to apply the lex fori approach doubted whether a regulation on the law applicable on divorce was needed in the first place. Issues concerning family law are to large extent competences that member states want to exercise. Other than establishing a European patent that would benefit the competition position of the EU towards the EU and Japan for instance, the need for a common solution on the EU level was perhaps less present. The proposed reconstruction would also make it possible to answer at least in part a further question, namely whether it is possible to apply analogously to the inter se agreements on certain conditions in force for enhanced cooperation 108 . On the one hand, the question is of little importance with regard to the most relevant of the substantive conditions to which the enhanced cooperation subordinates. In particular, given the prohibition of derogating from EU law, an agreement between Member States must comply with the same conditions laid down in Article 326 TFEU for enhanced cooperation 109 : respect for EU law in general and, in particular, absence of prejudice to the internal market, economic, social and territorial cohesion and competition 110 . On the other hand, the possibility of referring analogously to the discipline of enhanced cooperation is instead of undoubted importance with regard to procedural aspects, especially the condition of last resort and the principle of openness. With regard to the former, it is paradoxical that it is not required for a form of differentiated integration that is potentially more prejudicial to the integrity of the Union’s legal system when it is envisaged for enhanced cooperation 111 . This apparent contradiction could be found, on the interpretative level, relying on the principle of loyalty cooperation and resorting to an analogical application of the condition of last resort 112 . This would result in a sequence of priorities, under which enhanced cooperation would be residual with respect to the action taken by the Union as a whole and the conclusion of inter-agency agreements which in turn would be secondary to enhanced cooperation. In particular in cases C-274/11 and C-295/11, Republic of Spain v. Republic of Italy of 16 April 2013 113 , the CJEU and Adovcate General Bot gave the Council discretion in determining when the “last resort” condition has been fulfilled. This given discretion to the Council is a result of the CJEU using the “separation of powers” argument, where the CJEU only gives an opinion on the question whether the Council ‘has carefully and impartially examined’ the willingness of the member states to compromise and whether it has therefore correctly concluded that the adoption of legislation for the Union as a whole was out of 108 ESTÉVEZ MENDOZA, L.M. La instauración de la fiscalía europea como cooperación reforzada: Problemas orgánicos y procesales, in Revista de Estudios Europeos , 70, 2017, pp. 108ss. 109 LIAKOPOULOS, D. Art. 326 TFUE, in P. E. HERZOG, C., CAMPBELL, G., ZAGEL, Smit & Herzog on the law of the European Union , ed. LexisNexis, New York, 2018. 110 On the contrary, it is more uncertain if it can be applied analogically as established by art. 20, par. 2, TEU, according to which “enhanced cooperation is intended to promote the objectives of the Union, protect its interests and strengthen its integration process”. 111 MIGLIO, A. Differentiated integration and the principle of loyalty, in European Constitutional Law Review, 14 (3), 2018, pp. 478ss. 112 MARTÍNEZ CAPDEVILA, C. Son los acuerdos ‚inter se‘ una alternativa a la cooperación reforzada en la UE?, op. cit., pp. 430ss. 113 ECLI:EU:C.2013:872, (published only in the electronic Reports of cases).

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