CYIL vol. 12 (2021)
Dimitris Liakopoulos CYIL 12 (2021) legal measures subject to authorization by Union institutions or bodies, such a mechanism could be hypothesized for international agreements. It should also be recalled that a hypothesis of prior control by the CJEU on agreements concluded by Member States already exists. This is the procedure defined, albeit with reference not to agreements between Member States, but to draft agreements and conventions of Member States with third States, international organizations or third-country nationals, by art. 103 of the Euratom Treaty 179 .The provision in question provides primarily for an obligation to notify the EC of draft agreements or conventions that affect the scope of the Euratom Treaty. The State can only conclude the agreement or the Convention after having complied with the EC’s observations, which are given a first assessment on the compatibility of the project with the Euratom Treaty. In the event of disagreement, however, the Member State may, under an urgent procedure, call the CJEU to rule on the compatibility of the draft agreement with the provisions of the Treaty 180 . A similar preventive control mechanism was also provided for by art. 75 of the ECSC Treaty, which entrusted the EC with the power to verify the compatibility with the treaty of the draft international agreements of the Member States on coal and steel. The EC’s recommendations could subsequently be challenged before the CJEU on the basis of art. 33, par. 1 of the Treaty. These examples show that it is not at all unthinkable to attribute to the CJEU the power to rule ex ante on the compatibility of projects with international agreements between Member States. The application of the model represented by the procedure referred to in art. 218, par. 11 181 , TFEU should however undergo some adaptations. While the group of persons entitled to request the opinion of the CJEU-Member States, European Parliament, Council and EC-could be identical, to guarantee both the institutional balance and the rights and position of dissenting Member States, the determination of susceptible agreements to be subjected to this procedure could instead leave room for different alternatives. In this regard, it should be asked whether it is justified to provide for the application of such a procedure to all agreements concluded by Member States, or whether it is preferable to restrict them to agreements involving matters of shared competence or to agreements expressly granting tasks to Institutions of the Union. The variety of possible scenarios in which harm can occur to the integrity of the EU legal order suggests the possibility of providing for a monitoring mechanism applicable to the widest range of agreements between Member States, despite the experiment of the prefigured procedure being entail a sacrifice for the speedy conclusion of the agreement 182 . 179 DE WALSCHE, A. Le contrôle juridictionnel des accords internationaux, in Commentaire LOUIS, J.V., DONY, M. (eds.), Relations extérieures, Commentair J. Mégret, vol. XII, editions de l’Université, Bruxelles, 2005, pp. 140–142. 180 For an application of the procedure governed by the provision in question see: Délibération arrêtée en vertu de l’Article 103, alinéa 3, du traité CEEA – Projet de convention de l’Agence internationale de l’énergie atomique sur la protection des matiéres, installations et transports nucléaires. Délibération 1/78 of 14 November 1978, ECLI:EU:C:1978:202, I-02151. 181 SCHWARZE, J., BECKER, V., HATJE, A., SCHOO, J. EU-Kommentar , op. cit. 182 Moreover, precisely the procedural aggravation determined by the activation of the procedure in question could have an important positive implication, acting as a deterrent to the conclusion of agreements without the prior consent of the legitimates to activate the preventive opinion procedure, thus contributing to the preservation of equilibrium institutional. For the same reason, incentives to resort to inter-agency agreements as an alternative to enhanced cooperation would be in part less.
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