CYIL vol. 12 (2021)

CYIL 12 (2021)

THE ROLE OF COURT OF JUSTICE OF THE EU in inter se agreements …

13. Concluding remarks In any case, enhanced cooperation can not be a solution to addressing institutional issues, because the institutional framework can not be redesigned on a smaller scale; and furthermore any modification of this framework would require a revision of the Treaties. This would be the case, for example, if we wanted to introduce the direct election of the President of the EC, or merge that office with that of President of European Council: changes of this magnitude, which aim to innovate the current institutional structure of the European Union, can not be implemented with the provisions of the existing Treaties. The compatibility of inter se agreements with the procedural rules devised by the EU framework plays a significant role in preserving, albeit ex post, the quality of EU rules. The decision-making procedures provided in the EU Treaties, in fact, usually provide for greater participation and contribution of the EU institutional actors in drafting the legislation. Once incorporated in the EU legal order, the inter se treaties norms adopted disregarding the decision making procedures envisaged by the Treaties and with an unregulated involvement of EU institutions may affect the quality of future EU law. In fact, inter se agreements normally display lower standards of transparency and democratic accountability of the decision- making process, do not share the constituent principles applying to EU law and are out of the reach of the application of the CFREU. As demonstrated by the case of the Brussels Convention, if the institutional linkages between Member States’ agreements and the EU legal order are envisaged, the divide between the law of inter se agreements and EU law proper is to some extent reduced. It has been shown that the “grey area” between exclusivity and pre-emption in which the supervening exclusivity principle operates, the poor drafting of Article at issue and the CJEU and Advocate General’s opaqueness in the attempts to clarify the joint operation of articles 3(2) and 2(2) TFEU (i.e. the interrelation between the EU exercise of a shared competence and the scope of application of the supervening exclusivity principle) render it problematic to establish what the 3(2) TFEU principles entails in the first place. The aforementioned factors do render even more challenging to establish the effects of the principle at issue to inter se agreements in general terms. As far as the TSCG and the ESMT is concerned, a closer scrutiny at the competence purview of the EU legislation strictly interlinked to inter se agreements has revealed that the agreements at issue pertain to the competence domain of the coordination of the economic policy. This competence area is outside the reach of the category of EU ordinary shared competences to which pre-emption and supervening exclusivity normally apply. The absence of pre-emption thus renders the complementary intergovernmental action of the Member States legally viable The proposed inter se mixed agreements envisage the presence of the EU alongside that of the Member States. They would resolve the dialectics and the tensions of the European integration project in favour of the procedural framework characterizing the EU legal order. At the same time, these agreements would allow the Member States to share the ownership of the negotiation, conclusion and implementation of the agreement and to fully exercise their competences they did not intend to pool to the EU. the advantages of inter se mixed agreements, as described above, would not display their full potential if simply used to reintegrate already adopted classic inter se agreements as those concluded in the EMU area. The content of these agreements, in fact, would hardly be overhauled in the light of the EU participation to them. The fact that the Treaties are already in force would discourage major amendments or


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