CYIL vol. 12 (2021)

Dimitris Liakopoulos CYIL 12 (2021) States” 160 . The argument has the merit of saving the compatibility of art. 37 of the treaty with EU law, but contradicts the classification of the Mechanism as an “international financial institution”, that is, as an international organization independent from the Member States that established it. The limitation of the competence of the CJEU, pursuant to art. 273 TFEU, the disputes betweenMember States has also influenced the drafting of the TSCG, contributing to shaping the peculiar control mechanism referred to in art. 8 TSCG. The provision in question confers on the CJEU the power to rule on the violation of the obligation pursuant to art. 3, par. 2, TSCG, concerning the introduction at “preferably constitutional” level of the balanced budget rule and the establishment of a correction mechanism 161 . The procedure appears partly inspired by the infringement procedure, but with some important differences. Given the literal tenor of art. 273 TFEU 162 , it would not have been possible to give the EC the legitimacy to bring the appeal. A complex mechanism was then chosen which identifies only the Member States as procedural parties, but at the same time, by imposing an obligation to act in the presence of a negative assessment of the EC, leaves it partially in control of the procedure. Furthermore, as we have seen, the EC, while not taking part as a part, is nevertheless involved in the pre-litigation phase: it must present “promptly” to the contracting parties a report on the national measures adopted in compliance with art. 3, par. 2 TSCG and place “the contracting party concerned in a condition to submit observations” (art. 8, par. 1 TSCG). However, the configured procedure seems legitimate: provided that they do not assume the status of a party other than the contracting Member States, the latter remain free to bind themselves to the determinations of EC 163 . On the other hand, the object of CJEU’s jurisdiction could raise doubts of compatibility with primary law. If the violation of the obligation pursuant to art. 3, par. 2, TSCG by a contracting Member State, another contracting party may, if it considers that the State concerned has not taken the necessary steps to execute the judgment, to refer the CJEU to “request the imposition of financial sanctions according to the criteria established by the EC under Article 260TFEU”(Article 8 (2) of the TSCG). This forecast could be put in tension with art. 273TFEU 164 , which allows the CJEU to rule on “disputes” but does not mention the power to impose sanctions. However, the objection could be overcome by constructing the sanctioning mechanism as part of a single biphasic procedure or if the imposition of sanctions implied in the jurisdiction to resolve disputes between Member States was considered, as a means of ensuring the effectiveness of the decisions of the CJEU. And then let’s not forget that the mission of the CJEU is “to ensure that this system is maintained, in order to prevent the compromises made at the time of the drafting of the treaties being called into question again (…)” 165 . 160 CJEU, C-370/12, T. Pringle v. Government of Ireland and others , op. cit., par. 175. 161 However, it remains excluded from the jurisdiction of the Court pursuant to art. 8 of the Treaty control over the effective respect of budgetary constraints. PERTEK, J. Droit des institutions de l’Union européenne , op. cit. 162 SCHWARZE, J., BECKER, V., HATJE, A., SCHOO, J. EU-Kommentar , op. cit. 163 It should also be noted that the art. 8, par. 2 TSCG allows the other contracting parties to bring proceedings before the Court „regardless of the Commission‘s report“, even though it is very unlikely that Member States will

make use of this power. PERTEK, J. Droit des institutions de l’Union européenne , op. cit., 164 SCHWARZE, J., BECKER, V., HATJE, A., SCHOO, J. EU-Kommentar , op. cit.

165 CJEU, C-9/56, Meroni v. High Authority of 13 June 1958, ECLI:EUC:1958:7, I-00133, par.152. The Court recognised in Meroni that “in the balance of powers which is characteristic of the institutional structure of the Community” is a fundamental guarantee granted by the Treaty.


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