CYIL vol. 12 (2021)
CYIL 12 (2021)
8. The legitimacy of this practice in the light of the CJEU jurisprudence: From the Bangladesh to the T. Pringle case In the absence of provisions of primary law that expressly authorize the assignment of tasks to other Institutions, one wonders whether this contribution should be considered legitimate in the light of art. 13, par. 2 TEU. This provision is reflected in the interinstitutional relations of the principle of attribution and codifies the principle of institutional balance, requiring “each institution” to act “within the limits of the powers conferred upon it by the treaties, according to the procedures, conditions and objectives provided for by them” 120 . The verification of the respect of the institutional equilibrium arises in different terms according to whether differentiated forms of integration are internal or external to the Union system 121 . In the first hypothesis, possible institutional adaptations, such as the limitation of voting rights of non-participating Member States in the Council or the creation of specific bodies, are based on provisions of the Treaties and are placed in the overall context of the Union, with its guarantees, its remedies and its general principles. On the other hand, in the context of international agreements concluded outside the legal system of the Union, any alteration of the institutional balance would be produced by way of derogation from the Treaties, which can not be considered eligible. This results in the need to carefully examine the practice of delegating tasks to the European institutions by the Member States outside the legal system of the Union, in order to determine their legitimacy. This issue was first addressed by the CJEU in the previously mentioned Bangladesh case, which concerned an agreement by which the Member States had instructed the EC to coordinate the assistance they offered to a third State 122 . On that occasion, the CJEU stated that Member States can legitimately “entrust the EC with the task of coordinating a joint action they have undertaken”. A similar issue has arisen in an appeal brought by the European Parliament for the annulment of the financial regulation applicable to development finance cooperation under the Fourth Lomé Convention 123 . The contested act was adopted on the basis of an internal agreement between the Member States establishing the seventh European Development Fund (EDF), aimed at collecting and managing the contributions for development support governed by the convention 124 . Furthermore, it was envisaged that the discharge of the financial management of the EDF would be given to the EC by the European Parliament upon recommendation by the Council. With regard to the involvement of the institutions, the CJEU stated on this occasion that “no provision of the Treaty prevents Member States from using, outside its scope, procedural elements drawn from provisions applicable to Community expenditure and associating EU Iinstitutions to the procedure thus 120 LIGNIER, C., GEIER, A. Die Verstärkte Zusammenarbeit in der Europäischen Union. Politischer Hintergrund, Bestandsaufnahme und Zukunftsperspektiven, in Rabels Zeitschrift für ausländisches und internationales Privatrecht , 79, 2015, pp. 548ss. 121 LIGNIER, C., GEIER, A. Die Verstärkte Zusammenarbeit in der Europäischen Union. Politischer Hintergrund, Bestandsaufnahme und Zukunftsperspektiven , op. cit., 122 CJEU, joined cases C-181/91 and C-248/91, European Parliament v. Council and European Commission , op. cit., 123 Council Financial Regulation (EEC) 29 July 1991, n. 491, applicable to development finance cooperation under the fourth ACP-EEC Convention, in OJ L 266 of 21 September 1991, 1. 124 Internal agreement on the financing and management of Community aid under the fourth ACP-EEC Convention, in OJ L 229 of 17 August 1991, 288.
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