The court of justice approves the creation of the european stability mechanism outside the EU legal order: Pringle

Common Market Law Review

Volumn 50, Issue 3, 2013, Pages 805-848

  de Witte, Bruno ^a,b   Beukers, Thomas ^b  

^a MAASTRICHT UNIVERSITY   (Netherlands)

^b European University Institute EUI   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84881536124     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (60)

1. The European Council was represented by members of the Council legal service, since the European Council does not have its own specialized legal staff.
2. Adamski, "National power games and structural failures in the European macroeconomic governance", 49 CML Rev. (2012) 1319.
3. Allemand and Martucci, "La nouvelle gouvernance économique européenne", (2012) CDE, 17
4. Antpöhler, "Emergenz der europäischen Wirtschaftsregierung-Das Six Pack als Zeichen supranationaler Funktionsfähigkeit", 72 ZaöRV (2012), 353
5. Viterbo and Cisotta, "La crisi del debito sovrano e gli interventi dell'UE: dai primi strumenti finanziari al Fiscal Compact", (2012) Dir. Un. Eur., 323.
6. European Council Decision of 25 March 2011 amending Article 136 of theTreaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro, O.J. 2011, L 91/1 of 6 April 2011.
7. Peers, "The Future of EUTreaty Amendments", (2012)YEL, 1; and De Witte, "Treaty Revision Procedures after Lisbon", in Biondi, Eeckhout and Ripley (Eds), EU Law after Lisbon (OUP, 2012), p. 107.
8. Since the simplified revision does not involve the signature of a treaty between the Member States, the term "ratification" (which is generally reserved for the act of approval or confirmation of an international treaty) was replaced by the term "approval", which is not a term of art of public international law.
9. Louis, "Guest Editorial: The no-bailout clause and rescue packages", 47 CML Rev. (2010) 971
10. De Gregorio Merino, "Legal developments in the Economic and Monetary Union during the debt crisis: The mechanisms of financial assistance", 49 CML Rev. (2012) 1613
11. Middleton, "Not bailing out Legal aspects of the 2010 sovereign debt crisis", in A Man for All Treaties-Liber Amicorum en l'honneur de Jean-Claude Piris (Bruylant, 2012) 421
12. Viterbo and Cisotta, "La crisi della Grecia, l'attacco speculativo all'euro e le risposte dell'Unione Europea", (2010) Dir. Un. Eur., 961
13. Council Regulation 407/2010 of 11 May 2010 establishing a European financial stabilization mechanism, O.J. 2010, L 118/1. The Regulation was based on Art. 122(2) TFEU, which allows EU financial assistance to be given "where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control."
14. Decision of the Representatives of the Governments of the Euro Area Member States Meeting within the Council of the European Union, Council document 9614/10 of 10 May 2010.
15. The financial rescue operation for Greece had, instead, been launched immediately prior to the adoption of the EFSM and EFSF and was based on a coordinated series of bilateral agreements between Greece and the other euro area States; later on, in 2012, the EFSF was used for a second rescue operation for Greece.
16. Council Regulation 407/2010, referring to an upper limit of the loans or credit lines constituted by "the margin available under the own resources ceiling for payment appropriations." What this sibylline phrase means is that only those 60 billion were available for serving as a loan guarantee, with all the rest of the EU budget being committed to other purposes under the multiannual budgetary framework.
17. www.efsf.europa.eu/attachments/efsf_articles_of_incorporation_en.pdf.
18. Ruffert, "The European debt crisis and European Union Law", 48 CML Rev. (2011), 1777.
19. Thym, "Euro-Rettungsschirm: zwischenstaatliche Rechtskonstruktion und verfassungsgerichtliche Kontrolle", (2011) EuZW, 167.
20. Kaczynski and ó Broin, From Lisbon to Deauville: Practicalities of the Lisbon Treaty Revision(s), CEPS Policy Brief no.216, Oct. 2010.
21. Consultation of the Commission and the EP is required in all cases of recourse to the procedure of Art. 48(6). Consultation of the ECB is required by Art. 48(6) only "in the case of institutional changes in the monetary area", but there is nothing in the text of Art. 48(6) that prevents the ECB from being consulted also in other cases, as happened in this case.
22. The EP, see the annex to the Resolution of the European Parliament of 23 March 2011, Amendment of theTreaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro.
23. Those further particulars were called the "Term sheet on the ESM" and were published in Annex II of the European Council Conclusions of 24-25 March 2011.
24. Ohler, "The European Stability Mechanism: The long road to financial stability in the euro Area", 54 German Yearbook of International Law (2011), 47.
25. Treaty establishing the European Stability Mechanism, 2 Feb. 2012.The text is available at: www.esm.europa.eu/pdf/esm_treaty_en.pdf.
26. Given the proximity in time and subject matter with the "Fiscal Compact", which was signed in March 2012 by all those countries that had signed the ESM Treaty (and, in addition, by 8 non-euro area countries), most of those countries' parliaments decided to examine the two international treaties as a single political package.
27. Louis, "The unexpected revision of the Lisbon Treaty and the establishment of a European Stability Mechanism", inAshiagbor, Countouris and Lianos (Eds), The European Union after the Treaty of Lisbon (Cambridge UP, 2012) 284, at 298.
28. The term of "hybridité institutionnelle" is used by Martucci, "La solidarité intéressée dans la zone euro: les mécanismes de stabilité", Etudes européennes, www.etudeseuropeennes. eu (posted on 3 Aug. 2012).
29. Closa, The Politics of Ratification of EU Treaties (Routledge, 2013).
30. We here use the common informal denomination of the instrument, which is formally called the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. The text of this treaty, signed by the 25 contracting parties on 2 March 2012, can be found on www.european-council.europa.eu/eurozone-governance/treaty-on-stability.
31. An English translation of the Estonian Supreme Court's judgment of 12 July 2012 can be found on that court's website www.riigikohus.ee/id=1347.
32. Schmidt, "A sense of déja vu? The FCC's Preliminary European Stability Mechanism Verdict", 14 German Law Journal (2013), 1
33. Wendel, "Judicial restraint and the return to openness: The Decision of the German Federal Constitutional Court on the ESM and the Fiscal Treaty of 12 September 2012", 14 German Law Journal (2013), 21
34. Schneider, "Yes, but One more thing: Karlsruhe's ruling on the European Stability Mechanism", 14 German Law Journal (2013) 53.
35. Tomuschat, 127 DVBL (2012) 1431
36. Kahl, 128 DVBL (2013) 197.
37. www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ecofin/132615.pdf.
38. For the various stages of the Irish court cases, see the following newspaper reports: "Independent TD takes legal action over 'far-reaching' effects of referendum", Irish Times, 22 May 2012; "Pringle begins ESM legal challenge", Irish Times, 19 June 2012; "EU court is asked for quick decision over treaty lawfulness", Irish Times, 27 July 2012.
39. Bond buying on the primary market entails a purchase directly from the State issuing the bond; buying on the secondary market means buying a bond that is already on the market.
40. Statute of the Court of Justice of the European Union.
41. Rules of Procedure of the Court of Justice of the European Union.
42. Case C-188/92, TWD Textilwerke Deggendorf, [1994] ECR I-833.
43. Joined Cases C-181 & 248/91, Parliament v. Council and Commission [1993] ECR I-3685; Case C-316/91, Parliament v. Council [1994] ECR I-625.
44. Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge UP, 2010)
45. De Witte, "Treaty revision in the European Union: Constitutional change through international law", 25 Netherlands Yearbook of International Law (2004) 51, at 56-57.
46. Klabbers, Treaty Conflict and the European Union (Cambridge UP, 2009).
47. Bini Smaghi, "Who takes care of financial stability in Europe?", in Goodhart (Ed.), Which Lender of Last Resort for Europe? (London, 2000), p. 227.
48. Lenaerts and Van Nuffel, European Union Law (Sweet and Maxwell, 2011), p. 128
49. Palmstorfer, "To bail out or not to bail out? The current framework of financial assistance for euro area Member States measured against the requirements of EU primary law", 37 EL Rev. (2012), 771-784 at 780.
50. Opinion of the European Central Bank on a Draft European Council Decision Amending Article 136 of the Treaty on the Functioning of the European Union with Regard to a Stability Mechanism for Member States Whose Currency is the Euro, O.J. 2011, C 140/8, recital 9.
51. EFSF conditionality in relation to Ireland includes e.g. fiscal adjustment, including the correction of the excessive deficit by 2015 (next to an overhaul of the banking sector and growth enhancing reforms, in particular of the labour market). EFSF conditionality in relation to Portugal includes fiscal adjustment, including the correction of the excessive deficit by 2013 respecting the original deadline set by the Council (next to growth enhancing reforms and measures relating to the financial sector).
52. Recital 2 of the text as adopted by the EP on 12 March 2013. To this end also, the Macroeconomic adjustment programme will replace the Macroeconomic imbalances procedure and elements of the Stability and Growth Pact (Arts. 7-9). It will be the task of the Commission to "ensure that the memorandum of understanding signed by the Commission on behalf of the EFSF or ESM is fully consistent with the macroeconomic adjustment programme approved by the Council" (Art. 6(2)).
53. The UK has a special position among the "outs", see Protocol 15 on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland.
54. "Streit über Zypern-Hilfe: EZB-Chef Draghi kanzelt Schäuble ab", Spiegelonline, 27 Jan. 2013: www.spiegel.de/wirtschaft/unternehmen/finanzhilfen-fuer-zypern-ezb-chef-draghi-geht-schaeuble-an-a-879884.html.
55. Eurogroup Statement on Cyprus of 25 March 2013: "Against this background, the Eurogroup reconfirms, as stated already on 16 March, that-.in principle-financial assistance to Cyprus is warranted to safeguard financial stability in Cyprus and the euro area as a whole by providing financial assistance for an amount of up to EUR 10bn." Our emphasis.
56. Peers, "Towards a new form of EU law? The use of EU Institutions outside the EU Legal Framework", 9 EuConst (2013), 37.
57. Council document 9614/10 of 10 May 2010. The words "in this context" refer to the other Decision of the same day, and published in the same document, through which the euro State governments (rather than all 27 governments) had agreed to set up the EFSF.
58. Craig, "The Stability, Coordination and Governance Treaty: Principle, politics and pragmatism", 37 EL Rev. (2012) 231, at 240-247
59. Borger and Cuyvers, "Het Verdrag inzake Stabiliteit, Coördinatie en Bestuur in de Economische en Monetaire Unie: de juridische en constitutionele complicaties van de eurocrisis", 60 SEW (2012) 370, at 381-387
60. Tuori, "The European Financial Crisis-Constitutional Aspects and Implications", EUI Working Papers, LAW 2012/28, at 47.