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Should the Economic and Monetary Union Be Democratic After All? Some Reflections on the Current Crisis

Published online by Cambridge University Press:  06 March 2019

Extract

During the past months the European Council agenda has been dominated by Europe's economic crisis, which combines elements of banking crisis in the euro area and individual Member States' debt crisis – and has turned into something of an existential crisis for the Union as a whole. Many questions concerning the Union's legitimacy have been raised in the context of the current debates pointing out how the role of democratic institutions has turned blurry while market pressure has been tackled in quickly developing institutional structures by taking fast decisions on major economic commitments involving a tightened belt both for those receiving the aid, and for those giving the necessary guarantees required by the creditors. As the crisis has evolved, these questions have become more or less fundamental in nature since they have increasingly encompassed the trust in the possibilities of the Union to manage the crisis through its own decision-making. But at the same time, crises also bring about potential for change.

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Copyright © 2013 by German Law Journal GbR 

References

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44 Article 10(1) and (2) TEU.Google Scholar

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68 November 2011 six-pack, adopted by the Council to improve budgetary discipline, on the one hand, and economic surveillance, on the other, including Regulation amending Regulation 1466/97 on the surveillance of member states budgetary and economic policies; Regulation amending regulation 1467/97 on the EU's excessive deficit procedure; Regulation on the enforcement of budgetary surveillance in the euro area; Regulation on the prevention and correction of macroeconomic imbalances; regulation on enforcement measures to correct excessive macroeconomic imbalances in the euro area; and a Directive on requirements for the member states’ budgetary frameworks. These measures where concluded in two parts; first, a preventive part that was based on Art. 121 TFEU and including Council Regulation (EC) 1466/97, amended by Council Regulation 1055/2005 and Regulation 1175/2011 of EP and Council and second, a corrective part based on art. 126 TFEU and protocol 12 on excessive deficit procedure including Council Regulation (EC) 1467/97, amended by 1056/2005 and 1177/2011 and Council Regulation (EC) 479/2009, amended by 679/2010 and 679/2010.Google Scholar

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72 Serious doubts in this respect have been caused by some of the ECB's recent actions, which have – or so can certainly be argued - created risks for tax payers and compromised the Bank's independence. While the crisis has persisted, the ECB's role has changed to a factual financier of States that also places conditions on them. Such a role is problematic in light of the provisions of the Treaty concerning the prohibition to finance States and the independence of the ECB. From this perspective, also the recent Commission proposal establishing a European Supervisory Authority (European Banking Authority) conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions is also of a particular interest, See COM/2012/0512 final.Google Scholar

73 Decision by the Bundesverfassugsgericht of 12 September 2012, 2 BvR 1390/12; 2 BvR 1421/12; 2 BvR 1438/12; 2 BvR 1439/12; 2 BvR 1440/12; 2 BvE 6/12; available at: http://www.bundesverfassungsgericht.de/entscheidungen/rs20120912_2bvr139012.html (last accessed: 27 June 2013).Google Scholar

74 In Finland, for example, the Constitutional Committee of the Parliament has in several occasions emphasized the right to get information and possibilities to influence the decision-making in the instruments. For a discussion of some of the findings of the Finnish Constitutional Committee, see Päivi Leino-Sandberg and Janne Salminen, Eurokriisin demokratiaulottuvuuksia (The democratic dimensions of the euro crisis), in 3 Lakimies 390–413 (2013); Päivi Leino and Janne Salminen, The Euro Crisis and Its Constitutional Consequences for Finland, submitted to European Constitutional Law Review; Kaarlo Tuori, The European Financial Crisis – Constitutional Aspects and Implications, EUI Working Papers Law 2012/28 (2012).Google Scholar

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76 Habermas, , supra note 1, at 130.Google Scholar

77 Case C-370/12; Reference for a preliminary ruling from Supreme Court (Ireland), made on 3 August 2012, Thomas Pringle v Government of Ireland, Ireland and the Attorney General, at paras. 179–181.Google Scholar

78 See European Financial Stability Facility, About EFSF, available at: http://www.efsf.europa.eu (last accessed: 27 June 2013), and European Stability Mechanism, About the ESM, available at: http://www.esm.europa.eu/ (last accessed: 27 June 2013).Google Scholar

79 See European Council conclusions on completing EMU adopted on 14 December 2012, supra note 3, at para. 14; European Council conclusions on completing EMU, adopted on 18 October 2012, supra note 4, at para. 15.Google Scholar

80 See European Council conclusions on completing EMU adopted on 14 December 2012, supra note 3, at para. 14. See also, Rompuy, supra note 3, at 17. See also Rompuy, supra note 2.Google Scholar

81 See Smits supra note 56, at 830.Google Scholar

82 For a discussion, see Matthias Ruffert, The European Debt Crisis and European Union Law, 48 Comm. Mkt. L. Rev. 1801– 1802 (2011).Google Scholar

83 See Article 15(1) TEU.Google Scholar

84 The quote is from the van Rompuy interim report of October 2012; the idea is repeated in the Final Report at 16; see Rompuy, supra notes 2 and 3.Google Scholar

85 Rompuy, , supra note 3, at 16.Google Scholar

86 See Tuori, supra note 74, at 46. This element is observed in the European Parliament's Reflection Note. Democratic Scrutiny for the Euro, Brussels, 6 December 2012, D (2012) 64130 (on file with authors.) While the European Parliament claims to be ‘the Parliament of the Euro', the membership of the proposed Committee on Economic and Monetary Union focusing on democratic scrutiny ‘could be focused by political decision on parliamentarians from Euro-zone countries and a legal obligation to join'.Google Scholar

87 Agamben, Giorgio, State of Exception 9 (Kevin Attell (tr.) 2005).Google Scholar

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89 Id. at 13–14.Google Scholar

90 See Article 48 TEU.Google Scholar

91 This objective is also emphasized in the Preamble of the agreement itself: “Bearing in mind that the objective of the Heads of State or Government of the euro area Member States and of other Member States of the European Union is to incorporate the provisions of this Treaty as soon as possible into the Treaties on which the European Union is founded […]”Google Scholar

92 This does not mean that the words “transparency” or “openness” would not have been mentioned during the process: In October 2012 the European Council took the opportunity to stress that “[t]he process towards deeper economic and monetary union should build on the EU's institutional and legal framework and be characterized by openness and transparency towards Member States which do not use the single currency and by respect for the integrity of the Single Market.”92 Openness and transparency are thus, it needs to be pointed out, not directed at decision-making in relation to citizens, but to countries that are currently not in the euro. European Council conclusions of 18 October 2012, supra note 4, at para. 3. A similar reference can be found in the recent European Council Conclusions of 14 December 2012, supra note 3, at para. 4‥Google Scholar

93 For an example of such discussion, see Case T-590/10 Gabi Thesing and Bloomberg Finance LP v the European Central Bank, which concerned access to information concerning the Greek government deficit and debt.Google Scholar

94 E.g. Treaty of Lisbon extended the legal basis regulating the right of public access to cover documents held by the European Council, but three years later, the extension is still to be made. Current Regulation No 1049/2001 only applies to the European Parliament, Council and the Commission. See however, European Commission, Proposal for a Regulation amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents, COM (2011) 137 final (2011).Google Scholar

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