CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … The conclusion that the European institutions are not bound to respect Union law and, in particular, of CFREU, when acting outside the EU is, however, very weak and has been criticized 156 . From a systematic point of view, it is not easy to admit that the institutions can avoid compliance with the provisions of the treaties to which they owe their existence. Moreover, the more recent orientation of the jurisprudence appears difficult to reconcile with the previous statement by the CJEU that an act of an institution can not be subtracted from the jurisdictional review of compatibility with primary law “regardless of the question of whether the act was adopted by the institution in accordance with the provisions of the Treaty” 157 . Finally, it can not be concealed how this reconstruction appears to be questionable because of its possible consequences, because it creates an incentive to resort to instruments of international law precisely in order to circumvent the application of rules of Union law. The CJEU is in fact the only institution for which the assignment of functions outside the legal system of the Union is expressly permitted: art. 273 TFEU 158 authorizes it to confer on it competence, by means of a compromise, to decide on disputes between Member States related to the object of the Treaties in Article 273 TFEU there is no complementary role for any other EU institutions envisaged. In particular, the lack of involvement of the EC as the “watchdog” of the Treaties and as an institution capable of depoliticizing the disputes is particularly apparent. Most notably, the absence of the EC’s role to start infringement procedures pursuant to articles 258 and 260 TFEU is an evident drawback regarding the quality of the law of inter se agreements 159 . In the context of the ESMT, this provision has been implemented in the expectation that disputes between the Mechanism and its members or between members of the ESM “in relation to the interpretation and application of the (…) treaty” are decided by the governing Council (art. 37, par. 2); however, if a member of the ESM disputes the decision, the dispute is referred to the CJEU (art. 37, par. 3). The T. Pringle judgment judged the attribution of jurisdiction on the basis of the ESMT legitimate, stating that the notion of “compromise” in art. 273 TFEU also includes an agreement prior to the onset of the dispute and concerning an entire category of disputes. With regard to the procedural parties, art. 273 refers only to Member States, but the jurisdiction clause contained in the ESMT also includes disputes between the Contracting States and the Stability Mechanism. Quite arguably, the CJEU has assimilated the ESMT to the Member States, noting that, since the Mechanism is made up only of Member States, “a dispute to which the ESMT is a member can be considered a dispute between Member 156 KILPATRICK, C. Are the bailout measures immune to EU social challenge because they are not EU Law?, in European Constitutional Law Review , 10 (3), 2014, pp. 393ss. 159 BESSON, S. Droit constitutionnel européen : abrégé de cours et résumés de jurisprudence , ed. Stämpfli, Berne, 2011, pp. 50–51. ISAAC, G., BLANQUET, M., Droit général de l’Union européenne , Dalloz, Paris, 2013, pp. 44ss. JACQUÉ, J.P. Droit institutionnel de l’Union européenne, ed. Dalloz, Paris 2012, pp. 185ss. PERTEK, J. Droit des institutions de l’Union européenne , ed. PUF, Paris, 2013, pp. 114–115. 11. The attribution of jurisdiction to the CJEU: A particular case and/or at the last minute? 157 CJEU, C-316/91, European Parliament v. Council , op. cit., par. 9. 158 PEERS, S. Towards a new form of EU law?, op. cit., pp. 55ss.


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