CYIL vol. 12 (2021)
Dimitris Liakopoulos CYIL 12 (2021) Even on the basis of this clarification, the case-law seems to be intended to exclude that the law of the Union in general and CFREU in particular find application outside the Union’s legal system. While the Advocate General Kokott, in its position, had argued that the institutions would always be bound by respect for the law of the Union and the fundamental rights guaranteed by it, the CJEU, in its judgment in T. Pringle , confined itself to rather evasively, that “Member States do not implement Union law (…) when they establish a stability mechanism such as the ESMT” 151 . The Advocate General Kokott stated that: (…) an “empowerment by the proposed Article 136(3) TFEU of Member States to act in an area where the Union has exclusive competence would (…) (not entail) any substantive alteration of the provisions relating to the Union’s exclusive competence under Article 2(1) and Article 3(1)(c) TFEU. The existing force of those provisions is unaffected (…)” 152 . This passage is indeed ambiguous, because the clarification that the Member States do not implement Union law is certainly liable to exclude that the CFREU applies to the Member States, but does not necessarily imply that it can not apply to the work of the institutions. Some judgments of the Court concerning the compatibility with EU law, and especially with CFREU, of austerity measures taken at national level in implementation of obligations assumed by the Member States on the basis of Memoranda of Understanding seem to go further than to exclude the CFREU can apply to actions implemented, also by the institutions, in implementation of the ESMT. In particular, in rejecting appeals against 346 obtaining the award of damages for non-contractual liability of the Union for the work of the EC and the ECB in connection with commitments made by the Cypriot government on the basis of a memorandum of understanding signed with the ESM, the General Court took over the CJEU’s statement that the functions entrusted to the EC and the ECB in the context of the ESMT do not imply any decision-making power of their own and do not generate any obligation for the Union, engaging the single ESM, and concluded that the adoption of the memorandum of understanding can not therefore be considered “originated by the EC or the ECB” 153 . The non-applicability of the CJEU is supported by the recent conclusions of Advocate General Wahl concerning the Ledra advertising case 154 : the Advocate General has found that the separate legal personality of the ESM prevents the acts performed by its organs from being considered as acts of the Union or referred to to its institutions, even if the ESMTreaty recognizes certain tasks to these institutions 155 . 151 CJEU, C-370/12, T. Pringle v. Government of Ireland and others , op. cit., par. 180. 152 AZOULAI, L. (ed.), The question of competence in the European Union , Hart Publishing, Oxford & Oregon, Portland, 2014. 153 See: Order in case T-327/13, Mallis of 16 October 2014, ECLI: EU:T:2014:909, published in electronic Reports of cases, parr. 48–49. T-61/18, Rodriguez Prieto v. Commission of 04 April 2019, ECLI:EU:C:2019:671, published in the electronic reports of the cases. CJEU, C-289/13, Ledra Advertising v. European Commission and ECB of 20 September 2016, ECLI:EU:T:2014:701, published in electronic Reports of cases, parr. 45–46. SCHÜTZE, R., TRIDIMAS, T. Oxford principles of European Union law , Oxford University Press, Oxford, 2018. 154 BARDUTZKY, S., FAHEY, E. Funding the subjects and objects of contemporary European Union law , Edward Elgar Publishers, 2018, pp. 119ss. DOUGLAS-SCOTT, S., HATZIS, N. Research handbook on European Union law and human rights , Edward Elgar Publishers, Cheltenham, 2017, p. 511ss. 155 Conclusions of the Advocate General Niels Wahl of 21 April 2016 in joined cases: C-8/15 P, C-9/15 P and C-10/15 P, Ledra Advertising, op. cit., par. 53.
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