CYIL vol. 12 (2021)

CYIL 12 (2021) THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements … Although the wording of the provision leaves room for ambiguity, since it refers generically to “an envisaged agreement”, without specifying that it should be an agreement concluded between the Union and one or more third States or international organizations 175 , it must be excluded. The procedure also applies to draft agreements of Member States from these negotiations in the context of its external competence 176 . As is clear from the CJEU case-law, the restrictive interpretation is in fact imposed by the systematic placing of the provision, placed within an Article of the Treaty entirely devoted to the procedure for concluding the Union’s agreements 177 . Of course, this solution is quite understandable, since the advisory capacity of the CJEU serves to ensure the consistency of the Union’s legal system, which includes the international agreements it concludes, unlike the agreements concluded between the Member States. In a de jure condendo perspective, if the inter-agreements are intimately connected with Union law and pursue objectives that are typical of the process of European integration, probably the introduction of a mechanism inspired by the procedure under art. 218, par. 11, TFEU appears justified and supported by pragmatic considerations. It would indeed be an effective instrument for guaranteeing the integrity of the Union’s legal system and preventing the emergence of conflicts, in full analogy with the function that the CJEU exercises in relation to the draft agreements of the Union 178 . The objection that such a procedure is not consistent with the external character of the agreements between Member States with regard to the law of the Union does not seem decisive. The possibility of subjecting Member States’ agreements to preventive control is consistent with the reconstruction of relations between them and Union law in the light of the primacy principle. As there are several procedures which make the effectiveness of internal agreements, in HILLION, CH., KOUTRAKOS, P. (eds.), Mixed agreements revisted, Oxford University Press, Oxford, 2010. 175 See Opinion pursuant to Article 218(11) TFEU-Convention on the civil aspects of international child abduction- Accession of third States-Regulation (EC) No 2201/2003-Exclusive external competence of the European Union – Risk of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish of 18 May 2014, ECLI:EU:C:2014:2292, published in electronic Reports of cases, par. 30. 176 On the other hand, the procedure can be applied even if, although the agreement is concluded by the Member States, the latter act jointly as agents of the Union, thus contributing to the implementation of the external competence of the Union itself, according to the Opinion delivered pursuant to the second subparagraph of Article 228 (1) of the EEC Treaty-Convention No 170 of the International Labour Organization concerning safety in the use of chemicals at work. Opinion 2/912/91 of 19 March 1993, ECLI:EU:C:1993:106, I-01061, par. 5 and the Opinion pursuant to Article 218(11) TFEU-Convention on the civil aspects of international child abduction-Accession of third States-Regulation (EC) No 2201/2003-Exclusive external competence of the European Union-Risk of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish of 14 October 2014, ECLI:EU:C:2014:2303, published in electronic Reports of cases, par. 44) 177 Opinion 1/13 of 14 October 2014, ECLI:EU:C:2014:2303, published in the electronic Reports of the cases, par. 45, “(…) pursuant to Article 218 (1) and (11) TFEU, a request for an opinion may be submitted to the Court if the Union envisages concluding an agreement, which implies that the latter is to be provided by one or more institutions of the Union which is vested with powers under the procedure provided for in Article 218 TFEU (…)”. KLAMERT, M. Dark matter: Competence, Jurisdiction and “the area largely covered by EU law”: Comment on Lesoochranàrske, in European Law Review , 19 (3), 2012, pp. 340–350. 178 LIAKOPOULOS, D. Art. 218 TFUE, in HERZOG, P. E., CAMPBELL, C., ZAGEL, G. Smit & Herzog on the law of the European Union , ed. LexisNexis, 2018.

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