CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … established” 125 . In particular the CJEU found that: “(…) no provisions of the Treaty prevents Member States from using outside its framework, procedural steps drawing on the rules applicable to Community expenditure and from associating the Community institutions with the procedure thus set up (…) with the exception of the Pringle judgment and of the previous Bangladesh and Lomé cases, the CJEU has been the most active defendant of the institutional conception of the EU (…) has usually rejected the view emerging from this peculiar reading of the role of the Community Institutions. In particular, it rejected the possibility of regarding the Council as an intergovernmental venue where each Member State could defend its own interests (…)” 126 . According to our opinion the Kirchberg Judges underscored that also in the framework of the flexibility clause (now enshrined in Article 352 TFEU), the Council acts in its capacity as a Community Institution and not as a platform convening the various interests of the Member States the power to take measures envisaged by art. 352 TFEU 127 is conferred, not on the Member States acting together, but on the Council in its capacity as a Community Institution and although the effect of the measures taken in this manner by the Council is in some respects to supplement the Treaty, they are adopted within the context of the objectives of the EU. The CJEU considered that, in areas not covered by the exclusive competence of the Union, Member States retain: “(…) the right to entrust institutions, outside the Union, tasks such as the coordination of a common action they have undertaken or the management of financial assistance” 128 , provided that the agreement does not distort the powers conferred by the founding treaties on the institutions of the Union. Firstly, in the cases concerning the aid to Bangladesh and the financing of development cooperation under the Lomé Convention, the tasks entrusted to the EC were limited to the coordination of a collective action by the Member States, on the assumption that a unitary direction could benefit effectiveness of the intervention. On the other hand, the roles that the ESMT reserves to the EC and the ECB do not end with a mere coordination and management function, but also entail evaluative powers. Similar considerations also apply to the functions that EC and Council exercise within the Fiscal Compact. Secondly, while the evoked precedents refer to agreements concluded by all Member States, both the ESMT and the TSCG have been concluded are examples of differentiated integration. However, as regards the ESMT, the non-participating Member States also consented to the use of the European institutions under the agreement 129 . The TSCG is different and more complex, since not only the non-participating Member States have not explicitly consented to the allocation of functions to the institutions, but the conclusion of the Treaty has been openly opposed by the United Kingdom 130 . 125 CJEU, C-316/91, European Parliament v. Council, op. cit., par. 41. 126 GARBEN, S., GOVAERE, I. The division of competences between the European Union and the member States, op. cit., 127 SCHWARZE, J., BECKER, V., HATJE, A., SCHOO, J. EU-Kommentar , op. cit. 128 CRAIG, P. Pringle and use of EU Institutions. Foundation, procedure and substance, in European Constitutional Law Review , 9 (2), 2013, pp. 268ss. 129 CRAIG, P. Pringle and use of EU Institutions. Foundation, procedure and substance, op. cit., 130 On 20 June 2011, the representatives of the governments of all the Member States meeting within the Council adopted a decision stating that: “(…) the ESM Treaty must contain provisions on the basis of which the European Commission and the European Central Bank perform the tasks set out in the Treaty (…)”. See also recital 10 of the ESM Treaty. The decision was mentioned by Advocate General Kokott as an indicator of “sufficient commonality in the conduct of the Member States”.

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