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The Euro Area Crisis and Constitutional Limits to Fiscal Integration

Published online by Cambridge University Press:  27 October 2017

Abstract

Against the backdrop of the current euro area crisis and the imbalance at the heart of the Economic and Monetary Union, this chapter will explore the current state of fiscal integration, as well as its likely future and limits. It will do so by, first, creating a ‘map to fiscal integration’ that takes into account the degree of legalisation of state cooperation, as well as the subject-matter of particular fiscal rules. The three measures or packs of measures adopted by the euro countries since the start of the crisis will be discussed and located within this map to fiscal integration. The chapter will show that a distinction can be drawn between (1) what will be referred to here as ‘balance rules’, or rules that concern budgetary discipline and balance, and (2) substantive rules or measures that concern the allocation of resources within a state and thus have a distributive or redistributive effect. Once the state of play of fiscal integration is clear, the chapter will turn to the shape of future integration in this area, arguing that further fiscal integration—or legal integration that goes beyond balance rules and crosses into the (re)distributive area—is severely limited by the current Treaties and that, moreover, even a hypothetical Treaty amendment with a view to creating a full EU fiscal policy of this kind would run into significant theoretical problems, both as a matter of EU law and of national constitutional law.

Type
Research Article
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2012

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References

1 In general, the volume of overall debt/leverage (sovereign and private) is an important factor in the equation, but not the only one, as the maturity of the debt, as well as who owns it, are important too.

2 According to Abbott, Keohane, Moravcsik, Slaugher and Snidal, international legalisation is a form of institutionalisation characterised by three dimensions: obligation, precision and delegation. Abbott, K, Keohane, RO et al, ‘The Concept of Legalization’ (2000) 54 International Organization 401 CrossRefGoogle Scholar.

3 This concerns legal rules that have distributive and redistributive effects, and not what could be considered, broadly speaking, the redistributive effect of the EMU in its current set-up, which does not result from legal rules but is market-based: higher inflation re-distributes generally from creditors to debtors, private and public; the low interest rates re-distribute away from savers; yield spreads between different countries arguably has a redistributive impact as well.

4 Moloney, N, ‘EU Financial Market Regulation after the Global Financial Crisis: “More Europe” or More Risks?’ (2010) 47 Common Market Law Review 1317 Google Scholar; E Ferran, ‘CrisisDriven Regulatory Reform: Where in the World is the EU going?’ forthcoming, manuscript on file with the author.

5 For an overview of the crisis: House of Lords (EU Select Committee), ‘The Euro Area Crisis’, 25th Report of Session 2010–12, HL Paper 260.

6 Rather, a default on private debt is inevitable in the absence of official sector financing.

7 For an overview of the Greek situation and the EU’s response: Editorial|Comments, ‘The Greek Sovereign Debt Tragedy: Approaching the Final Act?48 (2011) Common Market Law Review 1769 Google Scholar; Hofmeister, H, ‘To Bail Out Or Not to Bail Out?—Legal Aspects of the Greek Crisis’ (2011) 13 Cambridge Yearbook of European Legal Studies 113 CrossRefGoogle Scholar.

8 On the legality of the rescue packages: Louis, JV, ‘Guest Editorial: The No-Bailout Clause and Rescue Packages’ (2010) 47 Common Market Law Review 971 Google Scholar; on the legality of these and other measures, including eurobonds, Athanassiou, P, ‘Of Past Measures and Future Plans for Europe’s Exit from the Sovereign Debt Crisis: What is Legally Possible (and What is not)’ (2011) 36 European Law Review 558 Google Scholar.

9 Based on Art 48(6) TFEU, which can be used because it does not enlarge the competence of the EU (since the resulting mechanism will not be part of the EU structure, but intergovernmental in nature). For an overview of the mechanism and the resulting changes: B de Witte, ‘The European Treaty Amendment for the Creation of a Financial Stability Mechanism’, SIEPS, European Policy Analysis 6 (2011) 1; House of Lords (EU Select Committee), ‘Amending Article 136 of the TFEU’, 10th Report of Session 2010–12, HL Paper 110.

10 The euro area Heads of State and Government stated in December 2011 that it is their common objective for the ESM Treaty to enter into force earlier, in July 2012: Statement by the euro area Heads of State or Government, 9 December 2011, 5.

11 See J Delpla and J von Weizsäcker, ‘The Blue Bond Proposal’, Bruegel Policy Brief 2010/03, May 2010; J Delpla and J von Weizsäcker, ‘Eurobonds: The blue bond concept and its implications’, Bruegel Policy Contribution 2011/02, March 2011. For a concise overview of the discussion on eurobonds: House of Lords (EU Select Committee), ‘The Future of Economic Governance in the EU’, 12th Report of Session 2010–11, HL Paper 124-I, pp 58 ff. On the legality of eurobonds within the current treaties: Athanassiou, ‘Of Past Measures and Future Plans’ (n 8) 571 ff.

12 For a general introduction to EMU, see Chalmers, D, Davies, G and Monti, G, European Union Law, 2nd edn (Cambridge, Cambridge University Press, 2010)CrossRefGoogle Scholar ch 17; or the relevant parts of ch 20 in Craig, P and Búrca, G de, EU Law, 5th edn (Oxford, Oxford University Press, 2011)Google Scholar.

13 Economists have traditionally distinguished the following progressive stages: Free Trade Area, Customs Union, Common Market, Monetary Union, Economic Union, Political or Full Union. Balassa, B, The Theory of Economic Integration (London, Allen and Unwin, 1961)Google Scholar. See also Barnard, C, The Substantive Law of the EU. The Four Freedoms (Oxford, Oxford University Press, 2010) 8 ffGoogle Scholar; Themaat, P VerLoren van, ‘Some Preliminary Observations on the IGC: The Relations between the Concepts of a Common Market, a Monetary Union, an Economic Union, a Political Union and Sovereignty’ (1991) 28 Common Market Law Review 291 Google Scholar.

14 The issue of economic governance within an asymmetric EMU has been discussed for many years. For a comprehensive review of the literature: N Jabko, ‘Which Economic Governance?: Facing up to the Problem of Divided Sovereignty’ SIEPS Report 2011/02. For a historical analysis of the Franco-German debate concerning the appropriate EMU architecture: Pisani-Ferry, J, ‘Only One Bed for Two Dreams: A Critical Retrospective on the Debate over the Economic Governance of the Euro Area’ (2006) 44 Journal of Common Market Studies 823 CrossRefGoogle Scholar; see also Schelkle, W, ‘The Theory and Practice of Economic Governance in EMU Revisited: What Have We Learnt about Commitment and Credibility?’ (2006) 44 Journal of Common Market Studies 669 CrossRefGoogle Scholar.

15 Notwithstanding the role of the National Central Banks within the European System of Central Banks.

16 On economic coordination, see, eg, Harden, I, ‘The Fiscal Constitution of EMU’ in Beaumont, P and Walker, N (eds), The Legal Framework of the Single European Currency (Oxford, Hart Publishing, 1999) 71–93 Google Scholar; Hodson, D and Maher, I, ‘The Open Method as a New Mode of Governance: The Case of Soft Economic Policy Co-ordination’ (2001) 39 Journal of Common Market Studies 719 Google Scholar; Amtenbrink, F and Haan, J de, ‘Economic Governance in the European Union’ (2003) 40 Common Market Law Review 1075 Google Scholar; Louis, JV, ‘The Economic and Monetary Union: Law and Institutions’ (2004) 41 Common Market Law Review 575 Google Scholar; Maher, I, ‘Economic Governance: Hybridity, Accountability and Control’ (2007) 1 Colombia Journal of European Law 679 Google Scholar.

17 For an overview: Craig, P, EU Administrative Law, 2nd edn (Oxford, Oxford University Press, 2012) 185 ffCrossRefGoogle Scholar.

18 The origins of the Stability and Growth Pact lie in a Resolution from 1997 (Resolution of the European Council on the Stability and Growth Pact, 17 June 1997). This spawned two regulations (preventive and corrective arm, respectively): Council Regulation (EC) 1466/97 of 7 July 1997 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies [1997] OJ L209/1; and Council Regulation (EC) 1467/97 of 7 July 1997 on speeding up and clarifying the implementation of the excessive deficit procedure [1997] OJ L209/6.

19 See the deficits of 2002–03 in France and Germany and the Council decision not to impose sanctions despite the Commission’s recommendation: Craig, EU Administrative Law (n 17) 189 ff.

20 On the basis of Art 121 TFEU.

21 On the guidelines and their effect, see Chalmers, , Davies, and Monti, , European Union Law (n 12) 740–42Google Scholar; Hodson, D, Governing the Euro Area in Good Times and Bad (Oxford, Oxford University Press, 2011)CrossRefGoogle Scholar ch 5 (‘Why the BEPGs Failed to Bite’).

22 For a brief overview, see, eg, S Micossi, ‘Misguided Policies Risk Breaking Up the Eurozone and the EU’ CEPS Policy Brief No 260 (December 2011) 4, electronic copy available at: www.ssrn.com/abstract=1996457.

23 More specifically, it was the perception (in retrospect proved to be partly correct because of the extraordinary level of official sector financing provided) that other euro area economies would provide financial support if one member threatened to default.

24 As noted in n 1, the causes are quite diverse; public debt, at least judged against what was deemed to be safe for developed countries, was fine for Spain and Ireland prior to the crisis. It is the transfer of private sector debt onto public balance sheets that has come close to destroying public creditworthiness in Ireland and Spain.

25 According to Abbott, Keohane, Moravcsik, Slaugher and Snidal, international legalisation is a form of institutionalisation characterised by three dimensions: obligation, precision, and delegation. Abbott, Keohane et al, ‘The Concept of Legalization’ (n 2).

26 A fiscal union of this kind would be, most likely, part of a broader economic union that would be competent to carry out its own broader economic policy, and would be able to regulate matters such as employment (because of the existence of a broad economic policy competence, and not because of a connection to the single market).

27 These are ideal types; although it may be difficult to distinguish between balance and substantive rules in some particular cases, it is submitted that the distinction is still a helpful one.

28 This chapter will distinguish between distributive, redistributive and regulatory policies: Lowi, T, ‘American Business, Public Policy, Case-Studies, and Political Theory’ (1964) 16 World Politics 677 CrossRefGoogle Scholar. See n 3 on the distinction between the distributive or redistributive effects discussed here, and the redistributive impact of the EMU in its current set-up.

29 It should be clarified that the discussion throughout the chapter refers to ‘general’ integration that would affect the euro area as a whole. It excludes punctual cases where a country is in a crisis situation and obtains EU financial assistance after the negotiation of specific conditions (which are often substantive in nature).

30 For background on the guidelines and their effect, see Chalmers, , Davies, and Monti, , European Union Law (n 12) 740–42Google Scholar; Hodson, Governing the Euro Area in Good Times and Bad (n 21) ch 5 (‘Why the BEPGs Failed to Bite’).

31 Regulation (EU) No 1173/2011 of the European Parliament and of the Council of 16 November 2011 on the effective enforcement of budgetary surveillance in the euro area; Regulation (EU) No 1174/2011 of the European Parliament and of the Council of 16 November 2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area; Regulation (EU) No 1175/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation (EC) No 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies; Regulation (EU) No 1176/2011 of the European Parliament and of the Council of 16 November 2011 on the prevention and correction of macroeconomic imbalances; Council Regulation (EU) No 1177/2011 of 8 November 2011 amending Regulation (EC) No 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure; Council Directive 2011/85/EU of 8 November 2011 on requirements for budgetary frameworks of the Member States.

32 Regulation (EU) No 1173/2011 (see n 31) creates gradual financial sanctions for euro area countries; this covers both the preventive and the corrective arm of the Stability and Growth Pact. Regulation (EU) No 1174/2011 (see n 31) foresees the imposition of enforcement measures to correct excessive macroeconomic imbalances in the euro area.

33 This is the so-called ‘two-pack’, of application to euro area members and based on Arts 136 and 121 TFEU. The first proposal would create an enhanced surveillance mechanism of draft budgetary plans, building on the preventive arm of the Stability and Growth Pact. The second proposal would create a system of enhanced surveillance for euro area countries that face financial difficulties (of automatic application to those countries that receive certain types of financial assistance). COM (2011) 821, Proposal for a Regulation of the European Parliament and of the Council on common provisions for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member States in the euro area; COM (2011) 819, Proposal for a Regulation of the European Parliament and of the Council on the strengthening of economic and budgetary surveillance of Member States experiencing or threatened with serious difficulties with respect to their financial stability in the euro area.

34 EUCO 10/1/11 REV 1 14, Annex 1, p 14.

35 In the case of employment, for example, the reforms to be given consideration include ‘flexicurity’, life-long learning and tax reforms.

36 Statement by the euro area Heads of State or Government, 9 December 2011, 1.

37 Ibid, 5. This commitment to a ‘common economic policy’ was also mentioned in the earlier drafts of the fiscal treaty, but it was removed later on and it is not present in the final, signed version.

38 As a general observation, the intergovernmental nature of the fiscal treaty and its place outside the institutional structure of the EU is reflected in the fact that, while there is certain involvement of the EU institutions, this has been kept to a minimum. Indeed, while the use of the EU institutions may lend more credibility to the commitments set out in a treaty of this kind, it is problematic to square this use with the EU Treaties, and to make it politically palatable. On the relationship with the EU Treaties and the legal problems arising from the use of EU institutions: House of Lords (EU Select Committee), ‘The Euro Area Crisis’ (n 5) 28 ff. For a thorough but concise legal analysis: Editorial Comments, ‘Some Thoughts Concerning the Draft Treaty on a Reinforced Economic Union’ (2012) 49 Common Market Law Review 1 Google Scholar.

39 The full text of the signed Treaty is available here: www.european-council.europa.eu/eurozone-governance/treaty-on-stability.

40 The Treaty also deals with governance of the euro (concerning eg regular meetings of the euro area and their organisation); this part will not be discussed here.

41 National budgets must be in balance or surplus; this requirement would be met if the annual structural government deficit does not exceed 0.5% of GDP at market prices.

42 This is for the first time a legally binding obligation, but the Euro Plus Pact already contained the same commitment. For an analysis, see Editorial, ‘The Fiscal Compact and the European Constitutions: “Europe Speaking German”‘ (2012) 8 European Constitutional Law Review 1.

43 Art 9 TSCG.

44 Art 9 TSCG continues:

[I]n pursuit of the objectives of fostering competitiveness, promoting employment, contributing further to the sustainability of public finances and reinforcing financial stability.

45 Art 136 TFEU allows the Council to use the procedures in Arts 121 and 126 TFEU (which concern the issuing of Broad Economic Policy Guidelines and the excessive deficit procedure) to adopt measures that affect only euro area members. As a result of this power, for example, part of the six-pack (concerning enforcement) is applicable only to euro area members. This would also be the legal basis for two Commission proposals currently progressing through the legislative procedure (the two-pack, see n 33).

46 Political significance is, of course, a different matter. From that point of view, the Treaty may be considered an attempt to show leadership and appease investors, as well as an attempt to make bailouts more palatable to (paying) domestic electorates.

47 As well as certain obligations to support the Commission when it comes to applying the excessive deficit procedure (Art 7 TSCG). This means that the contracting parties commit to not voting in Council against sanctions proposed by the Commission, although this obligation cannot be legally enforced.

48 Again, these are ideal types—in practice, it may difficult in some cases to distinguish between balance and substantive rules. Nevertheless, it is submitted that the distinction is still a useful one.

49 Here, again, fiscal integration refers to ‘general’ integration that would affect the euro area as a whole. It excludes punctual cases where a country is in a crisis situation and obtains EU financial assistance after the negotiation of specific conditions (which are often substantive in nature).

50 Intergovernmental, in this case, is used in the sense of involving only executives to the exclusion of an independent third party (both at adoption and when it comes to enforcement) and leading to the adoption of soft law, or measures that do not create enforceable legal obligations. The line between soft and hard law (or between intergovernmental and supranational arrangements) is not clear-cut: Craig, , EU Administrative Law (n 17) 210 Google Scholar; Abbott, Keohane et al, ‘The Concept of Legalization’ (n 2).

51 See, eg, Statement by the euro area Heads of State or Government, 9 December 2011, referring to the fiscal treaty as a ‘move towards a stronger economic union’ (p 1) and to ‘work towards a common economic policy’ (p 5).

52 For an overview, Craig, , EU Administrative Law (n 17) 209 ffGoogle Scholar.

53 On transparency in economic policy coordination specifically: Hodson and Maher, ‘The Open Method as a New Mode of Governance’ (n 16).

54 Art 2(3) TFEU:

The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

55 Chalmers, , Davies, and Monti, , European Union Law (n 12) 210 Google Scholar.

56 For political genesis and a short overview, see Schütze, R, ‘European Constitutional Law’ (Cambridge, Cambridge University Press, 2012) 167–68CrossRefGoogle Scholar.

57 See, eg, the proposed ‘two-pack’, which would be adopted on the basis of Arts 136 and 121 TFEU (n 33). A different matter is, of course, the extent to which it may be difficult some times to distinguish between balance and substantive rules; as mentioned above, these are ideal types.

58 In Tobacco Advertising, the Court laid down the test for the correct use of Art 114 TFEU, which allows the Union to harmonise national laws in order to establish or improve the functioning of the internal market: Case C-376/98 Germany v EP and Council (Tobacco Advertising) [2000] ECR I-8419. For background, see Weatherill, S, Cases & Materials on EU Law (Oxford, Oxford University Press, 2010) 33–51 Google Scholar; Barnard, , Substantive Law of the EU (n 13) 603–20Google Scholar.

59 On the current boundaries to further economic integrated created by the Member States’ reluctance to create a transfer Union, to transfer more power to Brussels, and to have their autonomy curtailed: Jabko, , ‘Which Economic Governance?’(n 14) 47 ffGoogle Scholar.

60 See Delpla and von Weizsäcker, ‘The Blue Bond Proposal’ (n 11); Delpla and von Weizsäcker, ‘Eurobonds’ (n 11). For a concise overview of the discussion on eurobonds: House of Lords (EU Select Committee), ‘The Future of Economic Governance in the EU’ (n 11) 58 ffGoogle Scholar. On the legality of eurobonds within the current treaties: Athanassiou, , ‘Of Past Measures and Future Plans’ (n 11) 571 ffGoogle Scholar.

61 The Court has long held that the Member States’ choices within their areas of exclusive competence are limited by the rules of the Treaties: see, eg, Cases C-372/04 Watts [2006] ECR I-4325 and C-512/03 Blanckaert [2005] ECR I-7685 on social security; C-446/03 Marks & Spencer [2005] ECR I-10837 on taxation; C-415/93 Bosman [1995] ECR I-4921 on sport. For two recent and notorious examples of this reasoning, see also Cases C-438/05 The International Transport Workers’ Federation and The Finnish Seamen’s Union [2007] ECR I-10779; C-341/05 Laval un Partneri [2007] ECR I-11767.

62 Additionally, the creation of a broader economic policy would, of course, run into the same problem to the extent that it would include fiscal policy. A full economic policy would be even more problematic from the point of view of separation of competences, though, to the extent that a full economic policy would potentially give the EU too broad a power to regulate: arguably, almost anything can be linked to economic policy in a broad sense. Thus the problem would not only be that the EU could merely affect all areas of national competence (as it was when discussing only fiscal policy) but that the EU’s positive competence to legislate would also extend enormously. Of course, this concerns only the creation of a full economic policy in the broadest sense; an EU regulatory economic policy which excludes fiscal policy, or taxation and direct allocation of public spending is far more likely to be pursued in the future on an incremental or more limited basis.

63 See, eg, Joerges, C, ‘The Market without the State? The “Economic Constitution” of the European Community and the Rebirth of Regulatory Politics’ (1997) 1 European Integration Online Papers Google Scholar. More generally, on ‘disembedded’ market and politics, Polanyi, K, The Great Transformation. The Political and Economic Origins of Our Time (Boston, Mass, Beacon Press, 2011)Google Scholar; Joerges, C and Falke, J (eds) Karl Polanyi, Globalisation and the Potential of Law in Transnational Markets (Oxford, Hart Publishing, 2011)Google Scholar.

64 Either through the involvement of national executives in law-making, or because of the original consent given to the Treaties, or a combination of both. See Moravcsik, A, ‘In Defence of the “Democratic Deficit”: Reassessing Legitimacy in the EU’ (2002) 40 Journal of Common Market Studies 603 CrossRefGoogle Scholar; Moravcsik, A, ‘Preferences and Power in the European Community: A Liberal Intergovernmental Approach’ (1993) 31 Journal of Common Market Studies 473 CrossRefGoogle Scholar; Majone, G, Regulating Europe (London, Routledge, 1996)CrossRefGoogle Scholar; Majone, G, ‘Europe’s “Democratic Deficit”: The Question of Standards’ (1998) 4 European Law Journal 5 CrossRefGoogle Scholar; Majone, G, Dilemmas of European Integration (Oxford, Oxford University Press, 2005)CrossRefGoogle Scholar; Lindseth, P, Power and Legitimacy: Reconciling Europe and the Nation-State (Oxford, Oxford University Press, 2010)CrossRefGoogle Scholar. On different intellectual approaches to democratic legitimacy in the EU: Menéndez, AJ, ‘The European Democratic Challenge: the Forging of a Supranational Volonté Générale’ (2009) 15 European Law Journal 277 CrossRefGoogle Scholar.

65 See, eg, Chalmers, , Davies, and Monti, , European Union Law (n 12) 125–36Google Scholar; Menéndez, , ‘The European Democratic Challenge’ (n 64) 15 Google Scholar; Curtin, D, ‘Framing Public Deliberation and Democratic Legitimacy in the European Union’ in Besson, S et al (eds), Deliberative Democracy and its Discontents (Aldershot, Ashgate, 2006)Google Scholar; Halberstam, D, ‘The Bride of Messina: Constitutionalism and Democracy in Europe’ (2005) 30 European Law Review 775 Google Scholar. On the EU as a corrector of national political processes, see also: Maduro, M, We, the Court (Oxford, Hart Publishing, 1998) 168 ffGoogle Scholar; M Poiares Maduro, ‘Europe and the Constitution: What if this is as Good as it Gets?’ 2000/5 ConWeb—Papers on Constitutionalism & Governance beyond the State, 11. Maduro further argues that giving a voice to foreign actors may even raise the voice of some domestic actors in cases where the national political process has been captured by a national interest group: ibid, 18–19. More generally: Held, D, Democracy and the Global Order (Cambridge, Polity Press, 1995)Google Scholar.

66 While the law of the single market may have a bearing on some of these decisions, what is discussed here is a general power to adopt these decisions even when there is no connection to the single market; there is an essential difference of degree.

67 Moravscik’s argument is based on the fact that the EU is limited to a ‘modest subset of the substantive activities pursued by modern states’. He explicitly excludes taxation and the setting of fiscal priorities, among other other essential areas: Moravcsik, , ‘In Defence of the “Democratic Deficit”’ (n 64) 607 Google Scholar.

68 For a concise overview of the discussion on eurobonds: House of Lords (EU Select Committee), ‘The Future of Economic Governance in the EU’ (n 11) 58 ffGoogle Scholar. On the legality of eurobonds within the current treaties: Athanassiou, , ‘Of Past Measures and Future Plans’ (n 8) 571 ffGoogle Scholar.

69 For a relatively recent and broad overview of the attitude of national constitutional courts to EU law and the project of European integration: K Kruma, ‘Constitutional Courts in the Europeanisation of National Constitutions’ in C Closa (ed) ‘The Lisbon Treaty and National Constitutions. Europeanisation and Democratic Implications’ Arena Report No 3/09, 143.

70 Decision of 30 June 2009, BVerfGE 123, 267. For comments on this case, see Thym, D, ‘In the name of Sovereign Statehood: A Critical Introduction to the Lisbon Judgment of the German Constitutional Court’ (2009) 46 Common Market Law Review 1795 Google Scholar; Payandeh, M, ‘Constitutional Review of EU Law after Honeywell: Contextualising the Relationship between the German Constitutional Court and the EU Court of Justice’ (2011) 48 Common Market Law Review 9 Google Scholar.

71 Decision of 12 October 1993, BVerfGE 89, 155.

72 Decision of 30 June 2009, BVerfGE 123, 267 [175].

73 In its decision, the German court equates democratic legitimacy with the legitimacy that emanates from representative democracy, without considering other concepts of democracy that have been put forward as being more adequate for the EU and also potentially capable of legitimising government (n 65).

74 Decision of 30 June 2009, BVerfGE 123, 267 [252]:

[D]ecisions on substantive and procedural criminal law, on the disposition of the monopoly on the use of force by the police and by the military, fundamental fiscal decisions on public revenue and expenditure, decisions on the shaping of the social state and of particular cultural importance, for example on family law, the school and education system and on dealing with religious communities.

75 Decision of 7 September 2011, Bundesverfassungsgericht, 2 BvR 987/10; 2 BvR 1485/10; 2 BvR 1099/10. On the German Court’s judgment and its relationship to the EU response to the euro crisis, see Editorial, ‘The Euro Crisis: Storm, meet Structure’ (2011) 7 European Constitutional Law Review 349 CrossRefGoogle Scholar. Several months later, the German court rejected that a parliamentary committee consisting of nine members could give the necessary parliamentary approval: Decision of 28 February 2012, Bundesverfassungsgericht, 2 BveE 8/11. At the time of writing, the BVerfG was due to decide on the constitutionality of the ESM.

76 The CJEU, for its part, recently acknowledged a Member State’s ‘constitutional identity’ as a limit to EU law in Case C-208/09, 22 December 2010, Ilonka Sayn-Wittgenstein v Landeshauptmann von Wien, Judgment of 22 December 2010, not yet reported. For a comment of this aspect of the case, see Besselink, LFM, ‘Respecting Constitutional Identity in the European Union: An Essay on ECJ (Second Chamber), Case C 208/09, 22 December 2010, Ilonka SaynWittgenstein v Landeshauptmann von Wien’ (2012) 49 Common Market Law Review 671 Google Scholar.

77 ‘Legalization’ of international cooperation is used here in the sense given to it by Abbott, Keohane, Moravcsik, Slaughter and Snidal: a form of institutionalisation characterised by three dimensions: obligation, precision, and delegation. Abbott, Keohane et al, ‘The Concept of Legalization’ (n 2).

78 Again, distinguishing between distributive, redistributive and regulatory policies: T Lowi, ‘American Business, Public Policy’ (n 28).

79 For example, contributing to the creation of a banking union: ‘Communication from the Commission to the European Parliament and the Council: A Roadmap Towards a Banking Union’ COM(2012) 510 final.