CYIL vol. 12 (2021)
Dimitris Liakopoulos CYIL 12 (2021) jurisdiction to issue a preliminary ruling on the questions submitted to it by the unified patent court is quite different. Given the classification of the Court as a court common to the Member States, the applicability of the institute of reference does not depend on the agreement establishing it, but on the general provision contained in art. 267 TFEU 169 , so that the agreement does not introduce any new competence for the CJEU. The function of art. 21 of the agreement, which governs the power/duty of the Court of First Instance (General Court of EU) to refer questions for a preliminary ruling, consists rather in ensuring that that procedure is available to it. Finally, it is obvious that even if an agreement between Member States confers a competence on the CJEU outside the cases provided for by art. 273 TFEU, this attribution must be compatible with the founding treaties and can not prejudice the structure of the Union’s judicial system, as can be inferred in particular from the opinion 1/09. 12. Towards the need for effective judicial review If with regard to the ESMT and of the TSCG the reasons of the practice in question can be traced back to contingent and emergency circumstances, other examples would seem to make it doubtful that this is a phenomenon confined to a transitory phase and destined to be rapidly overcome. Both the agreement on a unified patent court and the inclusion of an international treaty in the architecture of the banking union suggest that the use of inter-agency agreements, possibly complementary to Union measures, could be Member States are an attractive tool for creating lasting solutions, not necessarily due to the absence of adequate legal instruments within the EU legal system 170 . It is therefore a phenomenon that does not seem destined to become extinct in the near future. Some profiles of the phenomenon in question present an undoubted problematic character for the overall coherence of the EU legal system and for the effectiveness of its rules. Despite the provision, at least in some of the agreements in question, of coordination mechanisms with EU law, and although EU law is nevertheless intended to prevail, by virtue of the primacy, even in the absence of such measures, it can not to exclude the occurrence of conflicts. In addition, the trend towards making the effectiveness of certain Union acts Yusufi & Wadat Yusufi of 6 September 2012, ECLI:EU:C:2012:542. All the above cases was published in the electronic Reports of the cases. See also from the doctrine: MCPARLAND, M. The Rome I Regulation on the law applicable to contractual obligations , Oxford University Press, Oxford, 2015. WAIS, H. Einseitige Gerichtsstandverinbarungen und die Schranken der Parteiautonomie, in Rabels Zeitschrift für ausländisches und internationales Privatrecht , 81, 2017. SÁNCHEZ LORENZO, S. Choice of law and overriding mandatory rules in international contracts after Rome I, in Yearbook of Private International Law , X, 2010, pp. 70ss. BEHR, V. Rome I Regulation a-mostrly-unified private international law of contractual relationships within- most-of the European Union, in Journal of Law and Commerce , 29, 2010–2011, pp. 238ss. KRAMER, X. E. The interaction between Rome I and mandatory European Union private rules-EPIL and EPL: Communicating vessels?, in STONE, P., FARAH, Y. Research Handbook on European Union private international law , Edward Elgar Publishing, Cheltenham, 2015, pp. 250ss. CALVO CARAVACA, A. L., CARRASCOSA GONZÁLEZ, J. Litigación internacional en la Unión Europea II , ed. Comares, Granada, 2017, pp. 106ss. LIAKOPOULOS, D. Interactions between European Court of Human Rights and private international law of the European Union, in Cuadernos de Derecho Transnacional , 10 (1), 2018, pp. 254ss. 169 SCHWARZE, J., BECKER, V., HATJE, A., SCHOO, J. EU-Kommentar , op. cit. 170 DE GREGORIO MERINO, A. Reflexiones preliminares sobre la unión bancaria, (nota editorial), in Revista General de Derecho Europeo , 33, 2014. PISANI-FERRY, J., SAPIR, A., VERON, N., WOLFF, G. What kind of European banking Union?, in Bruegel Policy Contribution , 2012/12.
Made with FlippingBook - Online catalogs