Towards a new form of EU law?: The use of EU institutions outside the EU legal framework

European Constitutional Law Review

Volumn 9, Issue 1, 2013, Pages 37-72

  Peers, Steve ^a  

^a UNIVERSITY OF ESSEX   (United Kingdom)

Author keywords

Court of Justice of the European union; Economic and monetary union; Enhanced cooperation; European Union; Pringle

Indexed keywords

EID: 84876751831     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019612001034     Document Type: Article

References (128)

1. S. Peers,The Unravelling of EU Law: Diferentiated Integration within the EU Legal Order (Hart, forthcoming).
2. 〈www.european-council.europa.eu/media/639235/st00tscg26-en12. pdf〉.
3. The treaty entered into force on 1 Jan. 2013, as it had been ratifed by 12 states with the euro as their currency (Art. 14(2) of the treaty).
4. At time of writing (20 Feb. 2013), 17 member states had formally ratifed the treaty, including 13 eurozone states.
5. P. Craig, 'The Stability, Coordination and Governance Treaty: Principle, Politics and Pragmatism', 37 European Law Review (2012) p. 231;
6. D. Adamski, 'National Power Games and Structural Failures in the European Macroeconomic Governance', 49 Common Market Law Review (2012) p. 1319 at p. 1356-1360;
7. N. de Sadeleer, 'The New Architecture of the European Economic Governance: A Leviathan or a Flat-Footed Colossus?', 19 Maastricht Journal of European and Comparative Law (2012) p. 354 at 364-374;
8. S. Peers, 'The Stability Treaty: Permanent Austerity or Gesture Politics?', 8 European Constitutional Law Review (2012) p. 404.
9. This treaty entered into force in 2010, and was amended in 2011. Its purpose was to provide temporary fnancial assistance to those member states participating in the single currency which needed such assistance.
10. 〈www. efsf.europa.eu/about/index.htm〉.
11. 〈www.european-council.europa.eu/media/582311/05-tesm2.en12. pdf〉.
12. J.V. Louis, 'The Unexpected Revision of the Lisbon Treaty and the Establishment of a European Stability Mechanism', in D. Ashiagbor et al. (eds.),The European Union after the Treaty of Lisbon (CUP 2012) p. 284 at p. 297-314;
13. A. Gregorio Merino, 'Legal Developments in the Economic and Monetary Union During the Debt Crisis:The Mechanisms of Financial Assistance', 49 Common Market Law Review (2012) p. 1613 at p. 1621-1623;
14. C. Ohler, 'The European Stability Mechanism:The Long Road to Financial Stability in the Euro Area', 54 German Yearbook of International Law (2011) p. 47.
15. Peers, 'The Constitutional Implications of the EU Patent', 7 European Constitutional Law Review (2011) p. 229.
16. Case C-370/12 Pringle, judgment of 27 Nov. 2012 (not yet reported).
17. S. Peers, 'The Future of EU Treaty Amendments', 31 Yearbook of European Law (2012) p. 17 at p. 75-76.
18. EU legal order arising from the use of diferentiated integration within that framework, see Cases T-496/11 and T-45/12, UK v. ECB, pending.
19. H. Meijers, et al., Schengen: Internationalisation of Central Chapters of the Law on Aliens, Refugees, Privacy, Security and the Police (Stichting NJCM-Boekerij 1992).
20. J.C. Piris,The Future of Europe? Towards a Two-Speed EU (CUP 2012). This issue is beyond the scope of this paper.
21. The metaphor is borrowed from my analysis of the integration of the Schengen acquis into the EU legal order: S. Peers, 'Caveat Emptor?The Integration of the Schengen Acquis into the European Union Legal Order', 2 Cambridge Yearbook of European Legal Studies (1999) p. 87 at p. 123.
22. This includes other forms of intergovernmental measures (decisions of member states' representatives, or 'soft law' measures adopted by such representatives).
23. B. de Witte, 'Old-Fashioned Flexibility: International Agreements between Member States of the EU', in G. De Burca and J. Scott (eds.), Constitutional Change in the EU: From Uniformity to Flexibility (Hart 2000), p. 31.
24. B. de Witte, 'Chameleonic Member States: Diferentiation by Means of Partial and Parallel International Agreements', in B. de Witte et al., (eds.),The Many Faces of Diferentiation in EU Law (Intersentia 2001), p. 231;
25. A. Rosas, 'The Status in EU Law of International Agreements Concluded by Member States', 34 Fordham International Law Journal (2011) p. 1304 at p. 1317-1320;
26. R. Schutze, 'EC Law and International Agreements of the Member States: An Ambivalent Relationship?', 9 Cambridge Yearbook of European Legal Studies (2007) p. 386 at p. 408-425.
27. See, for instance, the Schengen Convention (OJ [2000] L 239).
28. See, for instance, the treaty on customs clearance (OJ [2009] C 92/1).
29. This treaty had not yet entered into force at time of writing, since it had been ratifed by 21 member states but must be ratifed by all of them to enter into force.
30. S. Peers, EU Justice and Home Afairs Law, 3rd edn. (OUP 2011), p. 596-597 and 657.
31. For an example, see the European Schools Convention (OJ [1994] L 212/3).
32. Joined Cases C-181/91 and C-248/91 Parliament v. Council and Commission [1993] ECR I-3685.
33. Case C-316/91 Parliament v. Council [1994] ECR I-625.
34. Case C-70/88 EP v. Council [1990] ECR I-2041, later confrmed by the amendment of Art. 173 EC by the Maastricht Treaty. The EP's standing was not widened until the Treaty of Nice.
35. Para. 27 of the opinion (emphasis added).
36. Para. 41 of the judgment (supra n. 30).
37. Para. 3 of the judgment (ibid.). The most recent internal agreement concerning the same fund provides for a similar role for the same institutions and bodies (OJ [2006] L 247/32).
38. Art. 4(1) EEC; see now Art. 13(2) TEU.
39. Supra n. 9, paras. 155-169 of the judgment.
40. Para. 158 of the judgment, referring to, 'inter alia': Opinion 1/92 [1992] ECR I-2821, paras. 32 and 41; Opinion 1/00 [2002] ECR I-3493, para. 20; and Opinion 1/09 (supra n. 6), para. 75.
41. Paras. 170-182 of the view.
42. Para. 172 of her view, referring to Council Doc. 12114/11, 24 June 2011.
43. 〈http://ec.europa.eu/economy-fnance/articles/fnancial-operations/ 2011-07-11-esm-treaty-en.htm〉.
44. See also the Court's application of Art. 3(2) TFEU, which is based on the external competence case law, to treaties between member states, in paras. 100-101 of the Pringle judgment.
45. Tere is one remaining distinction between treaties solely between member states, on the one hand, and treaties between member states and third countries
46. On the other: only the latter are protected pursuant to Art. 351 TFEU. On this issue, see further the 'Court of Justice' section below.
47. Opinion 1/92 (supra n. 36), para. 41. In particular, the allocation of competition jurisdiction under that treaty did not change the nature of the Commission's powers.
48. The procedure for the enforcement of such constraints is discussed in the 'Court of Justice' section below; see in particular the frst and second categories of the Court's jurisdiction discussed there.
49. As noted already, while the ESM Treaty was in force in all eurozone states at the time of the Pringle judgment, it originally entered into force-and could have remained in force-in only some of those states (supra n. 4).
50. Again, the Pringle judgment does not hint at such a condition. See also the endorsement by Advocate-General Jacobs of the use of the institutions by member states, individually or collectively-which must logically include their use by some (but not all) member states (supra n. 31).
51. The Advocate-General's view (at para. 174) explicitly argued that the enhanced cooperation provisions could not pre-empt the possible conclusion of treaties between member states using the EU's institutions.
52. de Witte (supra n. 19), p. 55-57
53. S. Peers,The Unravelling of EU Law (supra n. 1).
54. Presumably the role of these bodies was not discussed in the judgment because the EP was limited to arguing about its own prerogatives (see text, supra n. 30).
55. Art. 13 of the stability treaty, discussed in Peers (supra n. 2), p. 434-435.
56. In Bangladesh, the Court did not assess whether the Commission's act was legally binding, because it was sufcient that it did not afect the EP's prerogatives.
57. The Commission's self-serving argument that the EU legal order must be used instead of treaties between member states because 'only limited tasks.
58. Can be conferred upon EU institutions pursuant to the latter does not refect the wording of the Pringle judgment (see the blueprint for building EMU, COM(2012)777, 28 Nov. 2012).
59. Compare to Art. 290 TFEU.
60. Such a development is advocated by Piris (supra n. 17, at p. 56-57), although he believes that it would not be possible on the basis of the existing treaties.
61. See Arts. 3 and 8 of that treaty, as discussed in Craig, de Sadeleer and Peers, supra n. 2.
62. Art. 7 of the stability treaty. In the view of Adamski, Art. 7 'hovers in the realm of wishful thinking' (supra n. 2, at p. 1358).
63. See Art. 13 of that treaty, as discussed in Peers, supra n. 2, p. 434-435.
64. Craig, supra n. 2, p. 240-244.
65. S. Peers,The Unravelling of EU Law (supra n. 1).
66. Cases: C-434/11, Corpul National al Politistilor, order of 14 Dec. 2011;
67. C-134/12, Minis-terul Administratiei si Internelor (MAI), order of 10 May 2012;
68. C-369/12 Corpul National al Politistilor-Biroul Executiv Central, order of 15 Nov. 2012 (none yet reported).
69. Cases C-128/12 Sindicato dos Bancários do Norte and Others v. BPN and C-264/12 Sindicato Nacional dos Profssionais de Seguros e Afns v. Fidelidade Mundial.
70. C. Barnard, 'The Charter in Time of Crisis: A Case Study of Dismissal', in N. Countouris and M. Freedland (eds.), Resocialising Europe in a Time of Crisis (CUP, forthcoming).
71. Of course, it does not necessarily follow that the relevant national decisions are in breach of the Charter, merely that they fall within its scope as the member states in question are implementing EU law.
72. COM(2011)819, 23 Nov. 2011, Art. 6.
73. Council Docs. and 12569/1/12, 20 July 2012 and 12971/12, 31 July 2012.
74. Opinion 1/94 [1994] ECR I-5267, para. 52.
75. Pringle (ibid.), which was referred before the ESM treaty had entered into force, and by analogy Case C-491/01 BAT [2002] ECR I-11453, paras. 28-41.
76. Para. 8 of the judgment (supra n. 28), referring to ERTA (supra n. 99), para. 42.
77. Para. 93 of the opinion (ibid.). In his view, there was no such incompatibility in this case.
78. Para. 161 of the judgment (supra n. 9). The Advocate-General's view does not address this issue either.
79. See text supra n. 57.
80. Case C-355/04 P, [2007] ECR I-1657.
81. 'EC Law and Tax Treaties' (Doc. TAXUD E1/FR DOC (05) 2306, 9 June 2005), online at: 〈http://ec.europa.eu/taxation-customs/resources/documents/ taxation/personal-tax/double-tax-conventions/eclawtaxtreaties-en.pdf〉, n. 54.
82. Joined Cases 9 and 10/77 Bavaria Fluggesellschaft [1977] ECR 1517, para. 4 of the opinion.
83. Para. 9 of the Opinion in Case C-459/03 Commission v. Ireland [2006] ECR I-4635.
84. Paras. 170-176 of the judgment.
85. Para. 172 of the judgment.
86. Para. 174 of the judgment.
87. Para. 175 of the judgment.
88. Paras. 183-190 of the view.
89. Para. 186 of the view.
90. Para. 189 of the view.
91. The two earlier Opinions assume that pursuant to Art. 273, the Court could have jurisdiction in a dispute between two member states, either pursuant to a treaty (Bavaria Fluggesellschaft, supra n. 127), or to an ad hoc arrangement (Commission v. Ireland, supra n. 128).
92. Craig (supra n. 2) p. 245-7, Merino (supra n. 4), p. 1638-1640
93. de Sadeleer (supra n. 2) p. 1373
94. Peers (supra n. 2), p. 417-420.
95. T. Lock, 'The European Court of Justice: What Are the Limits of Its Exclusive Jurisdiction?', 16 Maastricht Journal of European and Comparative Law (2009) p. 291.
96. Art. 220 EEC/EC prior to the Treaty of Amsterdam.
97. OJ [1975] L 204/28.
98. Bulletin-EC, Supplement 4/71. The Convention (and Protocol) never entered into force.
99. See Bulletin-EC, Supplement 13/73.
100. See I. Fletcher, Confict of Laws and European Community Law (North Holland 1982), p. 251-268. 151The Jenard report: OJ [1979] C 59/66, point 4.
101. The report referred to internal agreements pursuant to association treaties (OJ [1964] 93, p. 1490/64), and appeals pursuant to Reg. 17/62 on competition law (OJ [1962] 13, p. 204/62).
102. OJ [1989] L 48/1 (frst protocol);
103. OJ [1989] L 48/17 (second protocol). For the Convention itself, see supra n. 24.
104. Supra n. 24.
105. Bulletin-EC, Supplement 8/76.
106. Supra n. 24.
107. OJ [1997] C 254/1.
108. Supra n. 22.
109. The Tizzano report (OJ [1990] C 219/1), point 16.
110. P. Kaye, New Private International Law of Contract of the European Community (Dartmouth 1993), p. 82
111. A. Mayss and A. Reed, European Business Litigation (Ashgate 1998), p. 258.
112. The frst protocol only needed to be ratifed by seven member states before it could enter into force; it is in force in all member states except Ireland. Both protocols entered into force on 1 Aug. 2004: OJ [2004] C 277.
113. The Rome Convention itself only needed to be ratifed by seven member states before it could enter into force (Art. 29(1) of the Convention, supra n. 24).
114. Opinion 1/91 (supra n. 141), paras. 59-63.
115. Opinion 1/92 (supra n. 36), para. 32.
116. Opinion 1/00 (supra n. 36), paras. 12, 18, 20, 24 and 25.
117. Moreover, the practice and case law converge: the distinction drawn by the Court's rationale in Opinion 1/92 (supra n. 36) between treaty amendments
118. And conferring new jurisdiction on the Court is nearly identical to the distinction drawn in the Jenard and Tizzano reports (supra ns. 151 and 161).
119. Indeed, the Rome Convention has been replaced (except as regards Denmark) by Reg. 593/2008, OJ [2008] L 177/6.
120. Opinion 1/76 [1977] ECR 741, para. 22, and Opinion 1/91 (supra n. 141), paras. 47-53.
121. Opinion 1/91 (supra n. 141), para 35.
122. Opinion 1/09 (supra n. 6). In Opinion 1/76 (supra n. 179), paras. 17-22
123. For the opposing view, see Piris, supra n. 17, chapter 6.
124. Indeed, the Advocate-General's view in Pringle (supra n. 9), states (at para. 199) that the use of the Commission and the ECB in the ESM Treaty is 'evidence' that Art. 4(3) TEU has not been breached.
125. See Arts. 208(1), 210 and 214(1) and (6) TFEU.
126. See Case C-503/03 Commission v. Spain [2006] ECR I-1097.
127. The requirement to negotiate such treaties set out in the previous Art. 293 EC can be seen as a particular example of this obligation.
128. Acts of member states related directly to the functioning of the EU institutions (see, for instance, Art. 253 TFEU) are another example.