CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) Since the CJEU did not express its views on the need for authorization from non- signatory Member States, it may be questioned whether the assignment of tasks to European institutions by the TSCG is compatible with the Treaties. In this regard, one could insist on the fact that the provisions of the TSCG conferring powers on institutions mostly reflect powers and procedures already provided for under Union law. From this consideration it was inferred that the institutions involved could legitimately exercise these powers, “with the only warning that they do so on the basis of the Union rules, not those of the Fiscal Compact” 131 . However, while this conclusion appears correct with regard to the numerous provisions which refer to competences or procedures already provided for under Union law, it does not seem to be acceptable with regard to the tasks assigned to the institutions under the procedure laid down in art.7 of the Treaty. If the function of States’ consensus consists in safeguarding the institutional unity, the concrete impact of the agreement on the powers of the institutions can be considered. In other words, if the impact on the powers of the institutions and on the unity of the institutional framework turns out to be very small, the agreement, even without the consent of all the Member States. Strong indications in this sense can be derived from the test applied in the Pringle ruling to ascertain the compatibility with the founding treaties of the ESM agreement, which is about to be examined. 9. Compliance with the powers conferred on the European Institutions by the Treaties Even if all Member States consent to it, the assignment of tasks to the Institutions of the Union through inter-agency agreements meets limits, to guarantee unity and institutional balance. On the one hand, given the primacy principle, Member States will be able to introduce additional rules compatible with the founding treaties, but not to derogate from the latter 132 . The fact that the CJEU, in its judgment in T. Pringle, referred to the principle drawn from the case-law on international agreements concluded by the EU 133 , according to which 131 GARBEN, S., GOVAERE, I. The division of competences between the European Union and the member States, op. cit. 132 As regards the involvement of the institutions, the distinction proposed in the doctrine between “attributions” (powers) and “tasks” (tasks) could be recalled: these could be conferred on the institutions “as long as those tasks fit within their existing competences”. See DE WITTE, B., BEUKERS, T. The Court of Justice approves the creation of the European Stability Mechanism: Pringle , op. cit., pp. 846ss. 133 CJEU, Opinion of the CJEU of 10 April 1992. Opinion pursuant to the second subparagraph of Article 228 (1) of the EEC Treaty-Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area of 10 April 1992, ECLI:EU:C:1992:189, I-02821, parr. 32 and 41. Opinion 1/00, Opinion pursuant to Article 300(6) EC-Proposed agreement between the European Community and non-Member States on the establishment of a European Common Aviation Area) of 18 April 2002, ECLI:EU:C:2002:231, I-03493, par. 20. Opinion 1/09. Opinion pursuant to Article 300(6) EC. Opinion delivered pursuant to Article 218(11) TFEU-Draft agreement-Creation of a unified patent litigation system – European and Community Patents Court-Compatibility of the draft agreement with the Treaties of 8 March 2011, ECLI:EU:C:2011:123, I-01137, par. 75. Lastly, the need to preserve the powers of the institutions, and in particular the Court of Justice, in order to safeguard the autonomy of the Union‘s legal system, constituted the leitmotif of the Court‘s reasoning in Opinion 2/13. Opinion pursuant to Article 218(11) TFEU. Opinion pursuant to Article 218(11) TFEU-Draft international agreement-Accession of the European Union to the European Convention for the Protection of

146