The narrative concerning the 2018-20 negotiations on the ESM reform oscillates between invoking the special status of the European legal framework and making the standard reference to the traditional public international law rules on full powers to negotiate. The general legal framework used by States in dealing with a negotiation, even at the European level, and even on a sensitive matter such as a mechanism dealing with a common currency, is still the one based on the principle of sovereignty and designed by the 1969 Vienna Convention on the Law of Treaties. This presentation will investigate whether this legal framework is a good fit to accommodate all the issues that a truly European debate should include.
The EU is founded upon the principle of representative democracy and it is uncontested that under this notion the powers of national parliaments in EU affairs can vary according to their respective domestic constitutional frameworks. The Eurocrisis and the measures adopted as a response thereto such as the ESM, however, considerably exacerbated the existing power imbalance between national parliaments, not lastly by transferring the source of this imbalance from the national onto the EU level. This paper argues that the asymmetric impact of the ESM and other crisis response measures on national parliamentary powers led to a situation of a divided democracy, in which some citizens are better represented at EU level than others. This in turn poses a challenge to the concept of representative democracy in the EU because it implies that democracy in the EU does not have the same meaning for all Union citizens but rather depends on the Member State that they are from.
During the negotiation of the ESM’s reform, a heated debate has inflamed the Italian political situation. A row over the necessity of a parliamentary consensus on the reform of the Treaty involved certain political parties. They questioned the content of the reform but also how the Italian Government handled the negotiation without involving the Parliament. The paper will focus on the constitutional provisions concerning the relationship between the Italian Government and Parliament in negotiating international Treaties. Focusing on this perspective, it will try to understand if the Italian debate can be considered as a “Ridiculous Drama” pointing out to what extent parliamentary participation rights can be exercise in order to influence the ESM reform and whether a review of legislation is proper in furtherance of the commitment to deal with the growing issue of a political control over international provisions directly affecting the national budgetary and political sovereignty.
The intervention will tackle the issue of legal remedies in the framework of the European Stability Mechanism (“ESM”), in order to identify the gaps in effective judicial protection resulting from the choice to set up the said mechanism ‘outside’ the EU legal order, by means of an international treaty concluded between the Euro Area Member States.
More specifically, the aim is to examine the (limited) legal remedies available to Member States, EU institutions and individuals to seek judicial review of legal acts adopted (and conducts carried out) pursuant to the ESM Treaty. To this end, both EU and national courts’ roles and case-law will be considered.
Particular attention will be paid to the ESM reform proposal currently under discussion, so as to assess the consequences, from the point of view of the fundamental right to effective judicial protection, of the abandonment of the idea of incorporating the ESM in the EU legal order by transforming it in a European Monetary Fund.
Notwithstanding the intention to change the intergovernmental form of the Treaty of ESM and to incorporate it into EU Law expressed in the joint Franco-German declaration on 19 June 2018 in Meseberg, this road was then excluded for the resistance of some States. Indeed, the on-going reform of the ESM Treaty exemplifies a tendency of the Member States to cooperate among themselves outside the current Treaties framework and in spite of the possibilities offered by the Lisbon Treaty.
The exclusion from the EU legal framework has several (obvious) consequences in term of accountability and institutional balance. The present contribution is aimed to analyse the impact of this choice on the role of the EU Parliament as well as on the consequences on the democratic principle, in a time that appears crucial for the future of the EU integration.