The XXVI FIDE Congress 2014 takes place at a time when the effects of the European financial and sovereign debt crisis have anything but abated many Member States. The European Union (EU) and its Member States at times continue to find themselves forced to react to current developments in a ra-ther makeshift fashion, while at the same time seeking structural remedies for the serious shortcomings of the Maastricht regime of economic policy coor-dination in Economic and Monetary Union (EMU) that the crisis has re-vealed.
Since the start of the European financial and euro area debt crisis this re-gime, which had been criticized from the very outset for its inability to ensure economic convergence namely between the Member States that share a single currency and which is held at least partly responsible for the current situation in the euro area, has undergone profound changes. Troika, Six-Pack, Two-Pack, TSCG and ESM are just a few main cues describing new economic governance in EMU. Driven by (a sense of) urgency and confined by the boundaries of the political and practically possible, next to supranational, also intergovernmental and even private law instruments have been utilised in an attempt to strengthen the existing governance framework primarily laid down in Title VIII of the Treaty on the Functioning of the European Union (TFEU) and namely its chapter 1 on economic policy.
This has arguably created a somewhat confusing picture of the current state of economic policy integration in the Union. On the one hand primary Union law and namely Articles 119 (1) and 120 TFEU continue to refer to the economic policies of the Member States. Moreover, Articles 121 and 126 TFEU basically describing the multilateral surveillance and excessive deficit procedure, as well as the associated Protocol on the Excessive Deficit
1. Professor of European Union Law, Erasmus School of Law, Erasmus University Rot-terdam. European Research Centre for Economic and Financial Governance (EURO-CEFG). Visiting Professor College of Europe (Bruges).
dure itself,2 have not been changed since the Treaty of Lisbon. On the other hand it is hardly an exaggeration to conclude that the Union and non-Union legal instruments that have been adopted to address the European financial and sovereign debt crisis, commencing with the financial support to Greece in the spring of 2010, call for the rewriting of handbooks on EMU. At a general level evidence for this view can be found for example in the introduction of the explicit balanced-budget rule for the contracting Member States of the Treaty on Stability, Coordination and Governance in the Economic and Mon-etary Union (TSCG)3 that arguably goes beyond what can be deduced from Article 126(1) TFEU in conjunction with the Protocol on the Excessive Defi-cit Procedure. At the more concrete implementation level this is highlighted by the introduction from 2011 of the so-called European Semester,4 and thereafter the Six-Pack and Two-Pack legislation5 that have profoundly changed the European economic policy coordination framework.6
2. Protocol No. 12 on the excessive deficit procedure, OJ 2008, C 115/279. See also Council Regulation 479/2009 on the application of the Protocol on the excessive def-icit procedure annexed to the Treaty establishing the European Community, OJ 2009, L 145/1 (as amended), which does however not concern the reference values itself.
(Codified version) (OJ L 145, 10.6.2009, p. 1).
3. T/SCG/en 1, signed on 2 March 2012 by all Member States with the exception of the Czech Republic and United Kingdom. Croatia, joined the EU on 1 July 2013.
4. See European Commission, Mastering economic interdependence: Commission pro-poses reinforced economic governance in the EU, Press release of 12 May 2012 (IP/10/561); European Commission, EU economic governance: the Commission proposes a reinforced macro-economic, budgetary and structural surveillance, Press release of 30 June 2012 (IP/10/859); European Council Conclusions of 16 Septem-ber 2010 (EUCO 21/1/10 REV 1); Report of the Task Force to the European Coun-cil, ‘Strengthening Economic Governance in the EU’, Brussels, 21 October 2010, online available at <http://www.consilium.europa.eu/uedocs/cms_data/docs/press data/en/ec/117236.pdf> accessed on 1 March 2014.
5. Council Regulation 1024/2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions, OJ 2013 L 287/63; Regulation 1022/2013 amending Regulation 1093/2010 establish-ing a European Supervisory Authority (European Bankestablish-ing Authority) as regards the conferral of specific tasks on the European Central Bank pursuant to Council Regula-tion No 1024/2013, OJ 2013 L 287/5.
6. Next to the before-mentioned provisions of primary Union law this concerns namely Regulation 1466/97 on the strengthening of the surveillance of budgetary positions and the surveillance and coordination of economic policies, OJ 1997 L 209/1, as amended by Regulation 1055/2005 amending Regulation 1466/97 on the strengthen-ing of the surveillance of budgetary positions and the surveillance and coordination of economic policies, OJ 2007 L 174/1; Regulation 1467/97 on speeding up and clarify-ing the implementation of the excessive deficit procedure, OJ 1997 L 209/6, as
The European (regulatory) response to the European financial and sover-eign debt crisis moreover has not been confined to economic policy. Firstly, the European Central Bank (ECB) could be seen engaging in crisis manage-ment and resolution in the shape of what the Bank describes as ‘non-standard monetary policy measures’.7 Secondly, a considerable amount of regulatory energy has also been put into the construction of a European financial super-visory system eventually resulting in the introduction of a Single Supersuper-visory Mechanism (SSM), therewith not only acknowledging the complicity of the prior Lamfalussy architecture in the course of events, but more generally the close link between economic and monetary policy in the euro area and finan-cial stability.
These measures that have been taken in response to the crisis arguably have implications for the future of European integration that reach far beyond the scope of EMU and financial market regulation and supervision, ranging from the integrity of the internal market to the very characteristics of the EU as a supranational legal order. It is for this reason that FIDE’s 2014 General Topic 1 on EMU aims at examining the constitutional and institutional as-pects of the economic governance in the Union and namely its consequences for the Union legal order and the legal orders of the Member States. A deep understanding of the impact of these developments is not only vital for build-ing sustainable economic governance structures in the medium to long term, as has been noted already in the introduction to the Questionnaire for this top-ic, but arguably also for deciding on the broader issue of what future direction European integration should take.
In order to provide some structure and to make it more accessible the Questionnaire has been divided roughly into two parts with two subparts each differentiating between questions linked to economic and monetary policy and for each of these parts whether they refer to the Union or national legal framework. However, as becomes clear from the discussions in the context of many questions, any such differentiation is bound to be somewhat artificial, as it does not reflect the close interdependence of all four areas. In fact, if an-ything, the European financial and sovereign debt crisis has highlighted the close interconnectedness of economic and monetary policy, as well as
amended by Regulation 1056/2005 amending Regulation 1467/97 on speeding up and clarifying the implementation of the excessive deficit procedure, OJ 2005 L 174/5.
7. P. Cour-Thimann and B. Winkler, The ECB’s non-standard monetary policy mea-sures the role of institutional factors and financial structure, ECB Working Paper, Series No. 1528 / April 2013.
opments on the financial market. Moreover, the developments at the Union level are inseparable from those at the national level and vice versa.
The general report is based on one institutional report drafted by a member of the legal service of the European Commission and 17 national reports, 10 of which have been submitted by national federations representing euro area Member States and 6 from non-euro area Member States. Moreover one third country report has been submitted. As could be expected the reports differ considerably. Some reports do not address all of the 14 substantive questions inter alia referring to the euro-area or Union specific nature of the question.
Most reports concentrate on illuminating certain legal issues, while not refer-ring to others, the latter of which may be the focus in other reports.8 This may be partly due to the rather strict page limits set by the organizers to which some national rapporteurs have taken a more flexible approach than others.
What is more, some national reports explicitly refer to the prevailing legal opinions among academia and policy-makers, whereas other reports make use of the open and exploratory phrasing of the Questionnaire to offer a legal assessment that (also) reflect the learned opinions of the rapporteurs. From all these observations it becomes clear that this general report cannot provide more than an impressionistic and patchy account of the prevailing legal dis-cussions and opinions in the countries that are covered by national reports.
It also needs to be stressed that it has been deliberately chosen to keep the structure of the Questionnaire intact and to let this general report be a reflec-tion of the responses provided in the nareflec-tional reports rather than a legal essay occasionally referring to the former. In structuring and summarizing the main observations made in the national reports and – to some degree – to put them in context, the general report quotes from the national reports whenever pos-sible in order to adequately reflect the (legal) analyses and opinions voiced therein. It is readily admitted that there is some overlap of the scope of some questions, depending on the way in which they are interpreted. The general report endeavours to avoid any repetitions by occasionally discussing re-sponses in the context of another question than the one for which they have been provided for in the national report.
Before finally turning to the discussion of the questions and responses, a general disclaimer is called for. This general report neither aspires to provide an all-embracing account of the constitutional and institutional framework pertaining to EMU and all (potential) legal questions linked thereto, nor to fill
8. Question 15 was expressly included as a reserve question to allow for any additional comments not fitting any of the previous questions.
the inevitable gaps in the reporting, to critically question or comment on all the (legal) arguments offered in the reports, or to provide an overview of the growing body of literature that – at times – is referred to in the national re-ports.9