EMU inter-se agreements : a laboratory for thinking about associative institutionalism

Abstract

Member States inter se agreements are a complex legal phenomenon epitomizing the tension between intergovernmental channels of cooperation and supranational structures of integration characterizing the evolution of EU law. EMU inter se agreements, in particular, constitute a unique laboratory to investigate this tension and they help to better understand the legal nature of Member States’ international agreements which display substantive, institutional and teleological proximity to EU law. EU law imposes some restraints on Member States for the conclusion of inter se treaties. This work critically scrutinises both competence-based and procedural-based restraints which are aimed at safeguarding the specific characteristics of EU law and the peculiarities of EU institutionalism. More specifically, the evaluation of inter se treaty-making restraints moves from the consideration that the use of EU Institutions outside of the Treaties’ framework is liable to undermine the very nature of EU institutionalism. The use of institutions outside the EU framework, as devised by the EMU inter se treaties, induces to a reinforcement of contractual visions of Europe premised on the conception of EU institutions as common organs in the hands of Member States. The EU external relations law practice provides interesting solutions to the risk of departure from Institutionalism entailed in the contractual conception of Europe. In particular, the Court’s understanding of mixed agreements suggests an associative institutionalist vision of Europe which is less concerned on the precise apportioning of competences between the EU and its Member States and is more attentive to the procedural framework in which the intergovernmental and the supranational components of the EU jointly operate. This approach could be extended also to inter se patterns of integration by devising the conclusion of inter se mixed agreements, i.e. agreements envisaging the participation of the EU and of some of its Member States in legal venues aimed at fostering the European Integration project.