CYIL vol. 12 (2021)
CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … the agreement must not distort the powers conferred on the institutions by the Treaties concerned, is particularly interesting. On the basis of the T. Pringle judgment, it can nevertheless be concluded that the conferred powers would be distorted, on the one hand, if the agreement assigned to an institution a power incompatible with the powers defined by the Treaties or, secondly, if it restricted the autonomy of supranational institutions-the EC and the ECB-of which the treaties protect independence 134 . In order to exclude that the ESMT would alter the essential characteristics of the institutions concerned, the CJEU verified that the functions conferred by the agreement to the EC and the ECB were compatible with the powers conferred by the founding treaties. With reference to the Central Bank, it noted that the functions assigned to it by the ESMT “comply with the different tasks that the EUTF Treaty and the Statute of the ESCB confer on this institution”, since art. 282, par. 2, TFEU provides that the ECB supports the general economic policies in the Union and art. 6, par. 2 of the Statute of the ESCB and of the ECB authorizes it to participate in international monetary institutions, while art. 23 of the bylaws allows it to “establish relationships (…) with international organizations” 135 . As regards the EC, the CJEU noted that the objective of the ESMT, which is to ensure the financial stability of the euro area as a whole, can be considered to correspond to a general interest of the Union. The involvement of the EC would therefore be functional to the exercise of one of the typical functions assigned by art. 17 TEU, consisting precisely in promoting the general interest of the Union. Furthermore, it is precisely the tasks assigned to the EC by the ESMT Treaty that would enable it to check the compatibility with EU law of the Memoranda of Understanding concluded by the ESMT: in this way, the EC would only Human Rights and Fundamental Freedoms-Compatibility of the draft agreement with the EU and FEUTreaties of 18 December 2014, ECLI:EU:C:2014:2454, published in electronic Reports of cases, parr. 183ss. The new definition not only takes into account the respective subject matter of international agreements and EU rules but it also examines the content, nature, and future foreseeable development of EU law in order to determine whether the relevant international agreements will affect it. Secondly, the Article argues that, after the condition of necessity no longer refers to the existence of EU external competence; rather, it now refers to its nature (that is, whether external competence is exclusive to the EU or whether it is shared with the Member States). The CJEU moves away from its quantitative and formalistic approach in order to scrutinize, in concreto, the effect on EU law. Traditionally, however, the CJEU would take a rigid attitude to any determination of the effect of the international agreements of Member States on EU rules. With such an attitude, the CJEU would, by default, presume the requisite effect on EU rules if the international agreement under review fell within one of three situations above. Furthermore, the CJEU would then proceed to examine the subject matter of the relevant international agreement without any care for possible contradictions. See in argument: KUIJPER, P. J., WOUTERS, J., HOFFMEISTER, F. The law of European Union external relations: Cases, materials and commentary on the European Union as an international legal actor, Oxford University Press, Oxford, 2018, pp. 520ss. DERLÉN, M., LINDOLM, J. The Court of Justice of the European Union: Multidisciplinary perspectives , Oxford Unviersity Press, Oxford, 2018. CASTILLO DE LA TORRE, D. Opinion 1/00, Proposed agreement on the establishment of a European Common Aviation Area, in Common Market Law Review , 39 (6), 2002, pp. 1373–1393 pp. 1392ss. 134 Insists on the guarantee of the independence of both institutions as a criterion for assessing the compatibility of the agreement with the treaties and the position taken by Advocate General Kokott on 26 October 2012 in case Pringle, parr. 175 and 181. N. GHAZARYAN, The European neighbourhood policy and the democratic values of the European Union. A legal analysis , Hart Publishing, Oxford & Oregon, Portland, 2014, pp. 21ss. 135 GHAZARYAN, N. The European neighbourhood policy and the democratic values of the European Union. A legal analysis, op. cit.
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