CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … As for the necessary link with the object of the treaties, it is clear that it is certainly satisfied: it has already been observed that the TSCG, even more than the ESMT, is closely linked to the EU, both for the objectives it pursues and for repeated referrals to the law of the Union it contains. However-and here lies the second significant difference between the procedure introduced by the TSCG and the one governed by articles 258–260 TFEU-the obligation of the contracting States to introduce in its domestic law the balanced budget rule is not reflected in EU law, so that the mechanism under examination relates to compliance with obligations under international law and not “Obligations incumbent on the Member States under the Treaties”, as stated in art. 258 TFEU 166 . Article 273 TFEU must also be read in connection with art. 344 TFEU, which subjects the disputes related to the interpretation and application of the treaties to the exclusive jurisdiction of the CJEU 167 . With respect to this last provision, the art. 273 has a broader scope and includes the most “connected” disputes with the object of the treaties. Article 273 TFEU covers two distinct situations. On the one hand, the controversies that are merely “connected” with the law of the Union can be submitted to the CJEU by means of a compromise, but this hypothesis appears to be a mere faculty. On the other hand, if the connection with EU law is such that the object of the dispute is inseparable from the interpretation and application of Union rules, the attribution of jurisdiction to the CJEU is mandatory. In this case, however, the basis of competence should not be sought in the compromise or in art. 273 TFEU, but in the other provisions of the Treaty concerning the attributions of the CJEU. The freedom of negotiation of the Member States also encounters a limitation in the opposite direction, in the sense that it is not possible to invoke Article 273 TFEU to give the CJEU a competence excluded from the Treaties. Examples of rules of this kind are found in articles 275 and 276 TFEU, which limit the competence of the CJEU on the matter, respectively, of the common foreign and security policy and of the area of freedom, security and justice. It should also be noted that the conclusion of a compromise pursuant to art. 273 TFEU is not the only means available to the Member States to give the CJEU additional powers beyond those provided for in the Treaties. It is possible, for example, that an agreement between Member States establishes a mechanism modeled on the reference for a preliminary ruling, by which national courts are authorized-or possibly an international judicial body established by the agreement-to refer questions to the CJEU. It is a model that has been followed, with indisputable success, by the conclusion of the protocol on the interpretation of the 1968 Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters. A similar solution was adopted, albeit through a more complex scheme that required the conclusion of two protocols, in relation to the interpretation of the Convention of Rome of contractual obligations (Rome I) 168 . On the other hand, the CJEU’s 166 SCHWARZE, J., BECKER, V., HATJE, A., SCHOO, J. EU-Kommentar , op. cit. 167 LIAKOPOULOS, D. Art. 344 TFUE, in P.E. HERZOG, C. CAMPBELL, G. ZAGEL, Smit & Herzog on the law of the European Union , ed. LexisNexis, New York, 2018. 168 Commission Regulation n. 593/2008 on the Law Applicable to Contractual Obligations (Rome I), 2008 O.J. (L 177) 6. See the next cases from the CJEU in argument: C-191/15, Verein für Konsumenteinformation v. Amazon EV Sàrl of 28 July 2016, ECLI:EU:C:2016:612; C-249/16, S. Kareda v. S. Benkò of 15 June 2017, ECLI:EU:C:2017:472; C-222/15, Höszig kft v. AlstomPowerThermal services of 7 July 2015, ECLI:EU:C:2015:525; C-483/14, K Finanz v. Sparkassen Versicherung Ag. Wien Insurance group of 7 April 2016, ECLI:EU:C:2016:205; C-557/13, H. Lutz v. E. Bäuerle of 16 April 2015, ECLI:EU:C:2015:205; C-190/11, Mühlleitner v. Ahmed


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