CYIL vol. 12 (2021)
Dimitris Liakopoulos CYIL 12 (2021) the creation of competing external institutions. Paradoxically, in some cases the involvement of Union institutions could therefore prove to be necessary, if the alternative consisted in creating external bodies that could have a negative impact on the exercise of the competences of the Union or its institutions, in violation of the principle of loyalty cooperation. The indications inferred from the jurisprudence would seem, at least at first sight, to suggest that the adoption of binding acts should be excluded. In the T. Pringle judgment, to determine whether the functions attributed to the EC and the ECB by the ESMT were compatible with primary law, the CJEU relied on the fact that these functions “did not imply any decision-making power” 144 . In reality, it does not seem necessarily to be inferred from this statement that the assignment of tasks involving the adoption of binding acts is unlawful tout court. This conclusion could also entail problematic aspects, both because some of the functions that the CJEU considered could be legitimately conferred on EU institutions, such as the power to coordinate financial assistance to third countries, seem to postulate the adoption of binding acts, and because the CJEU’s insistence on the need for judicial review 145 would not explain whether the institutions lacked such power 146 . A distinct problem, but intimately related to the nature of the powers exercised by the institutions in the exercise of tasks conferred by international agreements between Member States, pertains to their subjection to EU law, and in particular to the Charter of the Fundamental Rights of the European Union (CFREU). With reference to the CFREU, the solution depends on the interpretation given by art. 51, par. 1 147 of the same, which defines its scope of application. Certainly, Member States are bound to comply with the CFREU only when they act in implementation-rectius, more generally, within the scope of EU law, while the CFREU does not apply where the action of the States does not have any connection with the latter 148 . It is more complex to establish whether the institutions-or bodies and 147 For further details see also: CARMONA CONTRERAS, A.M. Las cláusulas horizontales de la Carta de Derecho Fundamentales de la Unión Europea, E. Aranzadi, Pamplona, 2020. BOBEK, M., ADAMS PRASSL, J. The EU Charter of fundamental rights in the member States , Hart Publishing, Oxford & Oregon, Portland, 2020. 148 CJEU, C-617/10, Åklagaren c. Åkerberg Fransson of 26 February 2013, ECLI:EU:C:2013:105, published in electronic Reports of cases, parr. 19–22. CJEU, C-206/13, Siragusa of 6 March 2014, EU:C:2014:126, published in electronic Reports of cases, parr. 21-24. For the analysis of the above cases see: CRAIG, P., DE BÚRCA, G. European Union law: Text, cases and materials , Oxford Uniersity Press, Oxford, 2018, pp. 417ss. CRAIG, P. European Union administrative law , Oxford Uviversity Press, Oxford, 2018. DE VRIES, S., BERNITZ, U., WEATHERILL, S . The European Union Charter of fundamental rights as a binding instrument. Five years old and grooming , Hart Publishing, Oxford & Oregon, Portland, 2018. In fact, the Court tried to verify whether the national legislation“could”, rectius had to implement a provision of EU law second objectives covered by EU law and the perspective referred to previously through the Melloni ruling. In the same spirit see from the CJEU: C-258/13, Sociedade Agrícola e Imobiliáriada Quinta de S. Paio Lda of 28 November 2013, ECLI:EU:C:2013:810, published in electronic Reports of cases, par. 18, stating that: „(…) it should be recalled that the scope of the Charter, as regards the actions of the Member States, is defined in Article 51 (1) of the Charter, pursuant to which the provisions of Charter apply to Member States exclusively in the implementation of Union law (sentence, Akerberg Fransson, C-617/10, op. cit., par. 17). Order of the case: C-483/11 and 10. The nature of the acts adopted by the European Institutions operating under agreements concluded between the Member States 144 CRAIG, P. European Union administrative law , op. cit. 145 CJEU, C-370/12, T. Pringle, op. cit., par. 161. 146 CJEU, C-316/91, European Parliament v. Council , op. cit., parr. 8–9.
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