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 recent ESM reform, 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
The paper will focus on the introduction of the Pandemic Crisis Support (PCS), as a special credit line of the ESM, agreed upon in the context of the responses to the Covid-19 emergency. While the main idea underlying such new instrument is clear (providing financial assistance to Euro area Member States subject to a reduced degree of conditionality), its legal implications are much more ambiguous. Suffice it to mention, the lack of changes in the text of both the ESM Treaty and Regulation (EU)472/2013, as well as the choice of ‘legal sources’ of uncertain legal value, such as the letter of Commissioners Dombrovskis and Gentiloni of 7 May 2020 or the various documents adopted by the Governing Board of the ESM. In light of the above, the paper will try to investigate if the PCS entails a ‘reform in disguise’ of the ESM, or whether it is actually a ‘non-reform’, since, at a closer look, it does not really alter the strict conditionality requirement that marks the very essence of the ESM.
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
This presentation focuses on the role of national parliaments under the ESM. It is uncontested under the EU Treaties that the powers of national parliaments in EU affairs can vary according to their respective domestic constitutional frameworks. Under the ESM, however, the existing power imbalance between national parliaments was exacerbated not lastly by transferring the source of this imbalance from the national onto the EU level by differentiating between member states according to their size and economic strength. This presentation analyses the asymmetric impact that the ESM has had on national parliamentary powers in the EU and its consequences for EU democracy, in particular at the time of the Euro crisis. It will further look in the question of whether and, if so, how such asymmetries can be lessened in the future by the ESM’s reform.
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 has been exercised 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
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 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.