Taming the Conclusion of Inter Se Agreements between EU Member States: The Role of the Duty of Loyalty

Summary:

This article discusses the relation between EU law and 'inter se' agreements. The article aims to revisit the EU law limits for extra-EU cooperation between Member States in areas that fall under EU powers.

In order to illustrate why it is necessary to revisit the EU’s stance towards inter se agreements, the article first discusses the threats to EU constitutional and institutional integrity that arise from the conclusion of inter se agreements in areas that fall under EU powers. Then, the article explores the limits posed by EU law to the conclusion of inter se agreements. The article also explores if the duty of loyalty, which is enshrined in Article 4(3) of the Treaty on European Union (TEU), presents a constraint on Member States’ ability to conclude inter se agreements in areas that fall under EU powers. It argues that the constraints imposed by the duty of loyalty on Member States’ powers can effectively address a number of the concerns raised by ‘extra-EU’ cooperation between Member States.