CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … Respecting the essential characteristics of the institutions defined by the founding treaties also implies the prohibition of altering their composition. On the one hand, if some Member States conclude an interim agreement, they will not be allowed to limit their participation in the institutions to only contracting Member States or their citizens. This is particularly evident with regard to the EC and the European Parliament, institutions that do not represent States’ interests and whose composition can not be altered even in the context of enhanced cooperation, but it must be considered that the same solution also imposes with regard to Council. In fact, if it is true that art. 330 TFEU excludes from the vote the members of the Council representing the Member States not participating in the enhanced cooperation, this limitation is possible only as expressly authorized by a provision of the Treaty. On the other hand, a similar limitation, as not authorized by the founding treaties, could not be determined by agreements outside the Union’s legal system 139 . On the other hand, and a fortiori, the creation of organs involving a contamination between the institutions of the Union and external subjects is not admissible. This prohibition can be deduced from Opinion 1/91, which found the original draft agreement on the creation of a European Economic Area to be incompatible with the EEC Treaty. The CJEU affirmed on this occasion that “the establishment of organic links” through the inclusion of CJEU judges in the composition of the EFTA Court 140 , far from mitigating the danger that the judicial system of the agreement could have represented for the autonomy of the However, the Community legal order would have aggravated it, given the different nature and the different aims of the EEC and of the European Economic Area Agreement 141 . Similar considerations should also apply to non-judicial institutions and, in particular, to the EC and the ECB, given their independence. In particular, the CJEU in case C-81/13, United Kingdom v. Council of 18 December 2014 has sought to distinguish and highlight the different status recognized in the EEA agreements with respect to the generality of association agreements with third States 142 . Alternatively, the CJEU could have identified the legal basis only in art. 217 TFEU, as suggested by Advocate General 143 the use of legal bases relating to external action, with the exclusion of the provisions of the Treaty relating to the corresponding internal competence, would however make the opt-out foreseen by Protocol no. 21, which is limited to the provisions of Title V of the third part of the Treaty and does not extend to the legal bases concerning external action. Finally, the need to safeguard the powers conferred on each institution by the treaties are subject to limitations not only to the extra ordinem use of European institutions, but also to 139 LIAKOPOULOS, D. Art. 330 TFUE, in HERZOG, P. E., CAMPBELL, C., ZAGEL, G. Smit & Herzog on the law of the European Union , ed. LexisNexis, New York, 2018. 140 EFTA COURT, The EEA and the EFTA Court: Decentrated integration, Hart Publishing, Oxford & Oregon, Portland, 2014. 141 Opinion delivered pursuant to the second subparagraph of Article 228 (1) of the Treaty-Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on to other, relating to the creation of the European Economic Area. Opinion of 14 December 1991, ECLI:EU:C:1991:490, I-06079, parr. 47–52. 142 ECLI:EU:C:2014:2449, parr. 58-64, published in electronic Reports of he cases, see in argument: FREDRIKSEN, H. H., FRANKLIN, C. N. K. Of pragmatism and principles: The EEA Agreement 20 Years on, in Common Market Law Review , 52 (5), 2015, pp. 629ss. GARBEN, S., GOVAERE, I. The division of competences between the European Union and the member States, op. cit., 143 See the conclusions of the Advocate General Juliane Kokott of 17 July 2014 in case: C-81/13, United Kingdom v. Council , ECLI:EU:C:2014:2114, parr. 87ss.


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