10-11. Other competences

Question 1

Competences based on an arbitration clause

Answer 1

1. Article 272 TFEU: arbitration clause:
   ‘The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by or on behalf of the Union, whether that contract be governed by public or private law.’
   (Competence of the General Court: article 256 § 1 al 1 TFEU)
   = this means that if MS jurisdiction cannot be excluded (Art. 274) unless Art. 272 applies
2. Article 273 TFUE: disputes between Member States submitted to the Court of Justice under special agreement:
   ‘The Court of Justice shall have jurisdiction in any dispute between Member States which relates to the subject matter of the Treaties if the dispute is submitted to it under a special agreement between the parties.’

Question 2

Conditions on the jurisdiction of CJEU on an arbitration clause

Answer 2

Art. 272

• contract concluded by/on behalf of the Union with a third party (state/natural/legal person)
• containing an arbitration clause giving jurisdiction to CJEU

Question 3

Conditions on disputes between member states submitted to the Court of Justice under a special agreement

Answer 3

Art. 273 TFEU contains two conditions:

1. the dispute has to relate to the subject matter of the European law
2. there should be a special agreement of the two MS in conflict to refers the case to the Court of Justice

e.g. Pringle

Question 4

Can the MS submit a dispute concerning the interpretation or application of Treaties by any other method?

Answer 4

NO
Article 344: MS undertake not to submit a dispute concerning the interpretation or application of treaties to any method of settlement other than those provided therein

–> The possibility of 273 TFEU becomes an obligation in Art.344

Question 5

Can CJ decide on the validity of a bilateral investment treaty between two MS?

Answer 5

Yes, Art. 344 is one of the basis to decide for the CJ that a bilateral investment treaties between 2 MS were invalid if inconsistent with Art. 344

Question 6

Can you bring claims of incompliance of Art 8 of Treaty on Stability Coordination Governance signed by 25 MS on the basis of Art. 273?

Answer 6

Yes, because the treaty presumes that the “special agreement” required by Art. 273 has been given by the treaty itself.

Question 7

Can the Court of Justice decide on the dispute between two MS regarding the extent and limits of the territories?

Answer 7

Yes - case Slovenia v. Croatia.

In the infringement procedure, there is no jurisdiction for the CJ because:

• it is not a subject matter of Treaties (the border dispute is a public intl law matter)
• there is no special agreement

However, the dispute could be brought on the basis of Art. 273, referring to Art. 4 TEU, principle of sincere cooperation + act of accession of Croatia. Here, the court announced that it would consider this admissible on this suggested basis.

Question 8

competences based on other texts than TEU or TFEU

Answer 8

1. Legislative acts of the EU creating European intellectual property acts (article 262 TFEU)
   - Here, it is not an agreement between MS giving jurisdiction but the Treaty giving possibility to Council
   - Special EU law because it is decided by the Council but can only enter into force by ratification of all MS
2. Competences based on agreements concluded between Member States
   - These are the old treaties provided for legal basis for MS concluding agreements in some areas. These conventions/protocols added jurisdiction which was often conferred to the Court of Justice
   E.g. Brussel convention on jurisdiction (convention of 68 and a protocol 71 gave jurisdiction to Court of Justice)

Question 9

Court’s competence on CFSP

Answer 9

The Lisbon Treaty maintains the Court’s lack of jurisdiction with respect to CFSP provisions (art. 275(1) TFEU) (exceptions in paragraph 2).
- No jurisdiction on Title 5 Art. 21-46

Question 10

exceptions to the lack of competence on CFSP

Answer 10

lack of jurisdiction with respect to CFSP provisions EXCEPT

1. Art. 40 TEU: Court of Justice has jurisdiction to decide where the border is between CFSP and the rest of EU law
   - -> This is to avoid the control of Court of Justice to claim that a certain act are part of CFSP when they are not
2. Court of justice has jurisdiction to rule on proceedings brought in accordance with provision art 263 (action for annulment - para 4: brought by natural or legal persons, individuals) to review legality of decisions providing restrictive measures on persons on the basis of the chapter 2 of the EU (art 23-41)

Question 11

Does the Court of Justice have competence on resolution of UN saying that members must take measures against companies or natural persons suspected in international law in some aspect?

Answer 11

YES, this is an exception fo the lack of jurisdiction of CFSP

Court of justice has jurisdiction to rule on proceedings brought in accordance with provision art 263 (action for annulment - para 4: brought by natural or legal persons, individuals) to review legality of decisions providing restrictive measures on persons on the basis of the chapter 2 of the EU (art 23-41)

+ Rosneft
+ Bank Refah Kargaran

Question 12

Competences on AFSJ

Answer 12

In matters relating to the Area of Freedom, Security and Justice, article 276 TFEU maintains the lack of jurisdiction of the Court.

Here, the same rules apply as in CFSP
- Art. 263 (4)