CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … rule and on the correction mechanism pursuant to art. 3, par. 2, TSCG. If the evaluation of the EC is negative, the other contracting parties contact the CJEU (art. 8). More generally, art. 11 TSCG refers to the participation of “Institutions” in the coordination of economic policies “in accordance with European Union law”. In the face of a massive involvement of the Council and the EC, the absence of European Parliament stands out, to which the treaty does not attribute any autonomous role, merely providing that the president of the euro summit should report to the European Parliament at the end of each meeting of the summit (art. 12, par. 5) and that representatives of European Parliament participate, together with national parliamentarians, in the interparliamentary conference established by art. 13TSCG for the purpose of discussing economic and budgetary policies and other matters falling within the scope of the Treaty. Finally, both agreements contain provisions attributing jurisdiction to the CJEU, which, however, since they pose different problems, will be considered separately. It is therefore evident that the institutions of the Union hold essential functions under the agreements in question, on which the whole architecture is based both on the stability mechanism and on the fiscal discipline introduced by the fiscal compact. The effectiveness of both instruments depends to a large extent on the powers to monitor compliance with the commitments made by the Member States that agreements accord to supranational institutions “borrowed” from the Union’s legal system. Furthermore, the involvement of the institutions is closely linked to the other elements of connection of the treaties in question with Union law. As a sense, the function of linking inter-agency agreements with EU law that the European institutions can play is somewhat reassuring, as it reduces the risks of fragmentation inherent in the use of this form of differentiated integration. In particular, the involvement of the European institutions is certainly preferable to the creation of ad hoc organs, which present greater risks of fragmentation, and can also represent, by reason of the institutions’ authority and experience, a counterweight to the eminently intergovernmental dimension that characterizes these agreements. and the procedures provided for there 119 . Given these advantages, however, the practice of assigning tasks to the institutions also raises serious concerns. The attribution of functions to certain institutions is in fact likely to affect the overall balance of powers, being able to realize surreptitiously, begging the circumvention of procedures provided for by the Treaties, the marginalization of certain institutions in the decision-making procedures and the reduction of parliamentary and jurisdictional control. More generally, the Member States could be tempted, in this way, to use the European institutions in a framework subtracted from the rules-on the subject, for example, transparency, justification of acts, respect for fundamental rights-to which the legality of the institutions’ work is subordinated. Therefore, two questions arise. Firstly, it is necessary to ask whether and within what limits the practice under consideration can be considered compatible with the Treaties; secondly, it is crucial to ascertain what consequences the practice in question produces on the actions of the institutions: what obligations they are subject to when they act on the basis of agreements between Member States and what the nature of the acts they adopt in the exercise of these skills.


119 PEERS, S. Towards a new form of EU law?, op. cit., pp. 40ss.

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