CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … dependent on the conclusion of intergovernmental agreements is a worrying development, although this solution is not justified by the absence of a Union competence. In this way, in fact, the activity of the interpreter is not only complicated, forced to reconstruct the discipline of the case between sources of different nature, but also reduces the effectiveness of the interpretative competence of CJEU 171 , which does not extend to external sources. to the legal system of the Union, and renounces the characteristics proper to the rules of this system, starting from the primacy and direct effectiveness, with a possible prejudice to the effectiveness of the measures adopted. Finally, recourse to the European Institutions, which is a distinctive element of some of the most recent agreements, lends itself to ambivalent evaluations. On the one hand, the involvement of the Institutions undoubtedly constitutes an important connecting factor between the sources and the coherence of the system; on the other hand, it can not hide how it can lend itself to abuse and produce detrimental effects on institutional balance. In this context, the fact that agreements between Member States remain external to the legal order of the Union does not imply that there are important limitations to that which Member States can make from this instrument. These are limits not expressly provided for in the treaties, but can be derived from general principles-primacy, pre-emption 172 , loyalty cooperation, subsidiarity 173 -and likely to be reconstructed from the jurisprudence. This 171 In the case of the agreement establishing the unified patent court, the impression is strong that the choice to use an international agreement and to include not only the rules necessary for the functioning of the Court, but also a part of the substantive regulation of the patent in a source external to the Union‘s legal system is precisely aimed at achieving this objective. However, it seems doubtful whether this result can be achieved, given that the interpretation of certain provisions included in the agreement could be essential for the exercise of the Court‘s jurisdiction to give preliminary rulings on the regulation on the patent with unitary effect. See in argument: JAEGER, T. Shielding the unitary patent from the ECJ: A rash and futile exercise, in International Review of Intellectual Property and Competition Law , 44 (4), 2013, pp. 389 ss. PILA, J., WADLOW, C. The unitary European Union patent system, op. cit., pp. 93ss. 172 KLAMERT, M. Supremacy, pre-emption and the Union interest, in KLAMERT, M. The principle of loyalty in European Union law , Oxford University Press, Oxford, 2014. 173 We could say the the crucial criterion for ascertaining effectiveness, assessment of the “means at the disposal of the Member States”. This can result in two scenarios: (i) if the “means at the disposal of at least one Member State prove to be ineffective to sufficiently achieve the objectives of the proposed action, the need for some EU action will be established, as these objectives will then indeed be „better achieved“ by the Union; or (ii) if the means available to all Member States are perfectly effective in order to sufficiently achieve the objectives of the proposed action, but the EU is more efficient in achieving these objectives, the Union action in those cases should still not be disregarded from the outset, if the action in question can benefit from economies of scale when undertaken at the EU level”. On the contrary, we can propose that assessing the compliance with subsidiarity should be in fact a single-step test: determining whether the objectives of the proposed action can only be achieved by the EU-wide action. According to our this opinion we can conclude that three comprehensive criteria for assessing whether the issue is capable of judicial resolution in the EU are thus proposed: a) the question of the CJEU’s jurisdiction-is it envisaged or not? b) the question of admissibility-does an action for bringing an issue before the CJEU exist, and who has the active legitimation to bring such action? and c) the question of substance-does the CJEU’s power to determine the issue on the merits exist? It is asserted that the first two steps comprise legal procedural exercises, which are properly vested in the jurisdiction of the CJEU. On the other hand, the third substantive step comprises a material assessment of the objectives of a particular proposed act, and amounts in essence to answering the question concerning at which level they are better achieved. It therefore requires mainly political or economic assessments that exceed the proper judicial functions. Along these lines of the CJEU lenient approach is the judgment in the ESMA case: C-270/12, UK v. European Parliament and the Council of 22 January 2014, ECLI:EU:C:2014:18, published in electronic reports of the cases. The CJEU formalistically accepted that: „(…) the objectives of the proposed action through the established EU agency could not be

157