Abstract
This contribution, based on a Paper for the International Conference on The Democratic Principle and the Economic and Monetary Union, held in Rome (Italy) on 22 January 2016, sketches the development of the role of the European Commission in EMU affairs, discusses, in the context of EMU, issues of democracy and legitimacy and puts forward ideas on fostering accountability, representation and transparency, as well as humane outcomes of policies.
The author gratefully acknowledges research assistance by Oliver Englisch. All errors and omissions are mine.
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- 1.
See the Resolution of the European Council on economic policy co-ordination in Stage 3 of EMU and on Treaty Articles 109 and 109b, 13 December 1997, available at: http://www.europarl.europa.eu/summits/lux1_en.htm#annex1, from which I quote: “in general exchange rates should be seen as the outcome of all other economic policies”.
- 2.
Article 5 TFEU even positions economic policy coordination as a separate category between the exclusive and shared competences. See, also, Article 2(3) TEU which obliges Member States to coordinate their economic and employment policies within Treaty-given arrangements which the Union is competent to provide.
- 3.
See, again, the statement of the European Council in its conclusions of December 1997: “The defining position of the ECOFIN Council at the centre of the economic coordination and decision-making process affirms the unity and cohesion of the Community”; and: “The Commission should provide analyses to the Council […]”.
- 4.
See, in a different context, the de-legitimisation undertaken by the new Polish Government in respect of the Commission, or by the advocates of the referendum on the EU-Ukraine Association Treaty in the Netherlands.
- 5.
In its judgment of 13 July 2004 in Case C-27/04 (Commission v. Council), the Court found that “responsibility for making the Member States observe budgetary discipline lies essentially with the Council”. The Court did salvage the Commission’s exclusive competence to submit recommendations. It found that “the Council cannot break free from the rules laid down by Article 104 EC [Article 126 TFEU] and those which it set for itself in Regulation No 1467/97. Thus, it cannot have recourse to an alternative procedure, for example in order to adopt a measure which would not be the very decision envisaged at a given stage or which would be adopted in conditions different from those required by the applicable provisions” and that “where the Council has adopted recommendations under Article 104(7) EC [Article 126, para. 7, TFEU], it cannot subsequently modify them without a fresh recommendation from the Commission since the latter has a right of initiative in the excessive deficit procedure”. Since the Council’s conclusions on the excessive deficits of France and Germany “were not preceded by Commission recommendations seeking the adoption, on the basis of Article 104(7) EC, of Council recommendations different from those adopted previously”, and were adopted in accordance not with the rules applying pursuant to para. 7 (all EU States vote except the State whose deficit is discussed) but under the rules applying pursuant to para. 9 (only Euro Area Member States vote) of Article 104 TEC [Article 126 TFEU], the “decision to adopt those Council recommendations, being contrary to Article 104(7) and (13) EC [Articles 126, paras. 7 and 13, TFEU], is therefore unlawful.”.
- 6.
The “Six-Pack” consists of the following legal acts reproduced in OJEU L 306, 23 November 2011: 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; 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; 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. 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. 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; and Council Directive 2011/85/EU of 8 November 2011 on requirements for budgetary frameworks of the Member States.
- 7.
The “Two-Pack” consists of the following legal acts reproduced in OJEU L 140, 27 May 2013: Regulation (EU) No. 473/2013 of the European Parliament and of the Council of 21 May 2013 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; and Regulation (EU) No. 472/2013 of the European Parliament and of the Council of 21 May 2013 on the strengthening of economic and budgetary surveillance of Member States in the Euro area experiencing or threatened with serious difficulties with respect to their financial stability.
- 8.
Treaty establishing the European Stability Mechanism, Brussels, 2 February 2012, as amended, available at: http://www.esm.europa.eu/about/legal-documents/index.htm.
- 9.
Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), Brussels, 2 March 2012, available at: http://europa.eu/rapid/press-release_DOC-12-2_en.htm.
- 10.
Articles 6, para. 2, (“in” Member States) and 10, para. 2, of Regulation (EC) No. 1466/97 (“out” Member States), as amended by Regulation (EU) No. 1175/2011.
- 11.
See, notably, Articles 6, para. 2, subpara. 5, and 10, para. 2, subpara. 5, of Regulation (EC) No. 1466/97, as amended [the preventive arm of the SGP]; Articles 4, para. 2, 5, para. 2, and 6, para. 2, of Regulation (EU) No. 1173/2011 [the enforcement of sanctions in relation to budgetary rules in respect of Euro Area Member States]; and Article 3, para. 3, of Regulation (EU) No. 1174/2011 [the enforcement of sanctions in relation to the correction of macro-economic imbalances in respect of Euro Area Member States].
- 12.
Article 7 TSCG, which reads as follows: “While fully respecting the procedural requirements of the European Union Treaties, the Contracting Parties whose currency is the euro commit to support the proposals or recommendations submitted by the European Commission where it considers that a Member State of the European Union whose currency is the euro is in breach of the deficit criterion in the framework of an excessive deficit procedure. This obligation shall not apply where it is established among the Contracting Parties whose currency is the euro that a qualified majority of them, calculated by analogy with the relevant provisions of the European Union Treaties without taking into account the position of the Contracting Party concerned, is opposed to the decision proposed or recommended.”.
- 13.
See Regulation (EU) No. 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No. 1093/2010, OJEU L 255, 30 July 2014, pp. 1 et seqq. (SRM Regulation), notably Article 18, para. 7.
- 14.
- 15.
Puetter (2012).
- 16.
Articles 5, 119, para. 1, and 120 TFEU.
- 17.
This term is defined here in the sense given by Bini Smaghi (2015): “Conditionality — which implies setting conditions in order for certain decisions to be implemented, typically by other institutions or countries, in a form of quid pro quo — is a way to coordinate or bind the behavior of institutions which are independent from each other or respond to different layers of government.” The author assesses conditionality as a necessity in the current federal make-up of the Union: “Conditionality is needed because the implementation of the ‘federal’ policy — monetary or financial assistance — requires an assessment about the appropriateness of the actions undertaken by the non-federal level of government (fiscal, structural policies). Given that these policies are still in the hands of national institutions, and likely to remain so long as the Union makes a more decisive move toward political integration, conditionality will remain an important component of the European policy framework.”.
- 18.
The Excessive Deficit Procedure (EDP; Article 126 TFEU) and the Stability and Growth Pact (SGP; Regulations (EC) Nos. 1466/97 and 1467/97, as amended) and the Six-Pack and Two-Pack legal acts mentioned before.
- 19.
In remarks made in the context of the move towards inter-governmentalism they discern: “The spread of political protests and institutional conflicts, both within and between Member States, highlights the challenges because the economic governance model is one based increasingly on executive rather than representative power.” And: “the increased resort to executive decisions in economic governance, leading to significant divergences and political conflicts, both among and within Member States, as well as between them and supranational EU institutions, which have tended to be bypassed by intergovernmental or even bilateral bargaining”. See Begg et al. (2015).
- 20.
It may be recalled that mention that the EU, in its public utterances and on its website has adopted this term instead of the word “Member State” again in the wake of the populist nationalist tide.
- 21.
Montevideo Convention on the Rights and Duties of States, 26 December 1933, available at: http://www.oas.org/juridico/english/treaties/a-40.html. Admittedly, the Convention’s definition of a State as possessing the following qualifications (a) a permanent population; (b) a defined territory; (c) Government; and (d) capacity to enter into relations with the other States, may be considered a codification of customary international law. Even so, the evolution of new governance forms, notably the EU, make this definition too narrow a perspective for the twenty-first century and an interconnected world.
- 22.
Whose definition as below but close to 2% inflation was adopted by the ESCB in the composition of the Eurosystem (Article 282, para. 1, 2nd sentence, TFEU), but is now contested mainly by German critics of the Euro Area’s monetary authority. For the Eurosystem’s own interpretation of the Treaty term of “price stability” which it is mandated to maintain (Ar 127(6) TFEU), see: the ECB’s Monthly Bulletin of January 1999 (p. 46), available at: https://www.ecb.europa.eu/pub/pdf/mobu/mb199901en.pdf.
- 23.
Jones and Torres (2015).
- 24.
Here, referendums in sub-entities of larger communities come to mind as inherently undemocratic when a majority (if at all, in case of a low turn-out perhaps even a minority) of a minority of citizens decides the future of the whole. Cases in point have been the referenda in Ireland on ratification of EU(-related) Treaties, the consultative referendum in the Netherlands on the EU-Ukraine Association Agreement and the UK referendum on EU membership where issues for a continent are decided by a few citizens only.
- 25.
For explanations on the role of fictions in shaping human behaviour, see: Yuval Noah Harari, Sapiens, A Brief History of Humankind, 2011 (Hebrew), 2014 (English).
- 26.
Culver and Giudice (2013).
- 27.
Note the interesting qualification of the European Union as “a constituted ‘commonwealth’ that marked ‘post-sovereign’ Europe” by Neil MacCormick in his book Questioning Sovereignty, cited by Eleftheriadis (2011), who adds “that the EU did not fit the sovereignty paradigm and was, instead, a mixed entity with a mixed constitution.”. McCormick’s observations deserve a full quote, again taken from Eleftheriadis: “[T]he idea of a democratic commonwealth [...] is a complex not a simple one. Neither ‘rule by the people, for the people’ nor ‘majority rule’ nor ‘one person, one vote’ nor any other simple concept or slogan will capture it. The different aspects of the value of democracy need to be acknowledged, in their parallelism with different elements or aspects of subsidiarity. An enlightened bureaucracy [...] can also be seen to have an essential utility in a well-constituted order.”.
- 28.
Habermas (2011).
- 29.
Nicolaïdis (2013). His definition is worthwhile to be quoted in full: “European demoicracy is a Union of peoples, understood both as states and as citizens, who govern together but not as one. It represents a third way against two alternatives which both equate democracy with a single demos: as a demoicracy-in-the-making, the EU is neither a Union of democratic states as ‘sovereigntists’ would have it, nor a Union-as-a democratic state to be as ‘federalists’ would have it. A Union-as-demoicracy should remain an open-ended process of transformation which seeks to accommodate the tensions inherent in the pursuit of radical mutual opening between separate peoples”.
- 30.
See Weiler (2012) and further references.
- 31.
Eleftheriadis (2011).
- 32.
Quoting Georg Gysi here does not imply support for his political positions. The author is aware of the allegations against the foreman of Die Linke concerning alleged collaboration with the secret service of the former German Democratic Republic (GDR) and the concealment of assets of the GDR’s ruling Communist Party, allegations that Mr. Gysi denies.
- 33.
Gysi (2015).
- 34.
The applicant Die Linke considered the right of collective bargaining and action (Article 28) to be violated, as well as the right to a fair remuneration (Article 31), the right to engage in work (Article 15), the provision of health care (Article 35), the right to housing and social assistance (Article 34), the right to education (Article 14) and the prohibition of discrimination (Article 21).
- 35.
See, for a very critical analysis, published just before the Syriza victory in January 2015 parliamentary elections in Greece: Eleftheriadis (2014).
- 36.
Para. 60 which concludes on the link as follows: “The ESCB thus ensures that the monetary policy measures it has adopted will not work against the effectiveness of the economic policies followed by the Member State”. ECJ 16 June 2015, Case C-62/14, Gauweiler and Others v. Deutscher Bundestag.
- 37.
The Advocate General quotes Die Linke in para. 143 of his Opinion and seems to agree with them that “the ECB, in participating in the assistance programmes concerned, has been actively involved in measures which, in certain circumstances, might be perceived as going beyond ‘support’ for economic policy.”.
- 38.
Neither addressed the issue of violation of basic rights through the structural adjustment and austerity measures to which the OMT would be linked, with the AG finding that the ECB should refrain from engaging in direct involvement in the monitoring of the financial assistance programme once it would have activated OMT in respect of a Member State—something I called “troixit” in a comment—but not insisting on keeping away from conditionality: his finding “does not prevent the ECB from regularly participating in financial assistance programmes as they are provided for in the ESM Treaty”. See paras. 140–151 of the AG’s Opinion in Case C-62/14, and Smits (2015).
- 39.
- 40.
European Commission (2015a).
- 41.
Singh (2016).
- 42.
At least partially: such methods do have their proper place but are all we have, and more so in the future if the strengthening of EMU continues along the lines sketched by the Five Presidents. See: Juncker et al. (2015), hereafter: Five President’s Report.
- 43.
Five President’s Report, Annex II: A More Integrated European Semester.
- 44.
Five President’s Report, para. 4.2.
- 45.
By going beyond the areas the provision mentions as examples (supply security, in particular in the area of energy) and adopting “the measures appropriate to the economic situation” that the “spirit of solidarity between Member States” calls for.
- 46.
Jones and Torres (2015) state: “the key to long-term sustainability requires doing more than just addressing the current crisis; it depends upon policymakers developing institutions and practices that will make it easier to address other future crises as well. The solution to the current problems of the euro area must help us deal with population ageing and climate change.”.
- 47.
Council Decision (EU) 2015/1410 of 19 August 2015 giving notice to Greece to take measures for the deficit reduction judged necessary to remedy the situation of excessive deficit, OJEU L 219, 20 August 2015, pp. 8 et seqq., and Council Implementing Decision (EU) 2015/1411 of 19 August 2015 approving the macroeconomic adjustment programme of Greece, OJEU L 219, 20 August 2015, pp. 12 et seqq.
- 48.
Five President’s Report, Chapter 5.
- 49.
Article 17, para. 8, TEU; Article 234 TFEU.
- 50.
Article 2, a-b, of Regulation (EC) No. 1466/97, as amended by Regulation (EU) No. 1175/2011 (preventive arm of the SGP); Article 2 of Regulation (EC) No. 1467/97, as amended by Regulation (EU) No. 1177/2011 (corrective arm of the SGP); Article 3 of Regulation (EU) No. 1173/2011 (enforcement of SGP in EA); Article 6 of Regulation (EU) No. 1174/2011 (enforcement of EIP in EA); Article 14 of Regulation (EU) No. 1176/2011 (EIP); Article 15 of Regulation (EU) No. 473/2013.
- 51.
Article 7, para. 3, of Regulation (EU) No. 473/2013.
- 52.
See: Article 2, a-b, notably para. 3, of Regulation (EC) No. 1466/97, as amended [the “preventive arm” of the SGP]; Article 2, a, notably in subpara. 3 of para. 1, of Regulation (EC) No. 1467/97, as amended [the “corrective arm” of the SGP]; Article 14, notably para. 2, of Regulation (EU) No. 1176/2011 establishing the Economic Imbalances Procedure; Article 6, notably subpara. 2, of Regulation (EU) No. 1174/2011 on the enforcement of the Economic Imbalances Procedure in the Euro Area; Article 3, notably subpara. 2, of Regulation (EU) No. 1173/2011 on the effective enforcement of the SGP (“budgetary surveillance”) in the Euro Area; Article 15, notably para. 2, of Regulation (EU) No. 473/2013 on monitoring draft budgets and the correction of excessive deficits in the Euro Area.
- 53.
Klaver (2012).
- 54.
See, by way of example, these two news releases: http://www.fin.gc.ca/n16/16-005-eng.asp and http://www.fin.gc.ca/n16/16-010-eng.asp, plus many others at: http://www.fin.gc.ca/news-nouvelles/nr-nc-eng.asp.
- 55.
Bini Smaghi (2015).
- 56.
See: http://www.cosac.eu/en/.
- 57.
Tumpell-Gugerell (2014).
- 58.
- 59.
Trichet (2011).
- 60.
Rubio (2016).
- 61.
European Commission (2015b).
- 62.
The Commission’s original proposal (European Commission 1998) was withdrawn after 17 years.
- 63.
Article II of the Articles of Agreement of the International Monetary Fund.
- 64.
The arguments put forward by Bickerton (2013) may be reflected upon in this context. His book was awarded the Best Book of 2013 prize awarded by the University Association of Contemporary European Studies (UACES).
- 65.
Article 130 TFEU; Article 7 of the ESCB Statute.
- 66.
See, again, my line of reasoning back in 1997 on the “tied” competence of the Council to enact provisions on external representation, implying reverence for the inherent own powers of the ECB in the external field: Smits (1997), pp. 412–413, 414.
- 67.
Smits (1997).
- 68.
Article VIII, sec. 2(a), of the Articles of Agreement, IMF.
- 69.
See Smits (1997), p. 433.
- 70.
Article 284, para. 2, TFEU.
- 71.
Acknowledging that this formal power has not been used, as far as is known in the public domain.
- 72.
The announced incorporation of the TSCG into the EU legal framework (Article 16 TSCG) may be an appropriate moment to do so.
- 73.
Hers and Suyker (2014). CBP stands for: CPB Netherlands Bureau for Economic Policy Analysis (CPB), an independent policy research and advice body for the Dutch Government.
- 74.
By way of example, Member States with a collective memory of hyper-inflation, like Germany or Bulgaria, are more likely to insist on price stability and strict budgetary rules than others.
- 75.
See: http://ademu-project.eu/.
- 76.
Disclosure: I am a member of the Advisory Committee of this largely macro-economic research project on the theoretical underpinnings of a redesigned institutional structure of EMU. ADEMU brings together eight research groups, headed by the European University Institute (EUI)’s Economics Professor Ramon Marimon; it also touches upon legal issues. The ADEMU project’s work is undertaken under the responsibility of a Steering Committee, which has appointed the already mentioned Advisory Committee to provide “an external monitoring role and periodic advice to the ADEMU Consortium”. The Advisory Committee also monitors the policy recommendations the Project is required to come forward with.
- 77.
Ferreira (2016).
- 78.
- 79.
The word humane also forms an acronym: HUMANE: Help Us Make A New Europe, as James Organ, quoted by Ferreira, found.
- 80.
Rifkin (2004), pp. 280 et seqq.
- 81.
Article 13 TFEU: “In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.” (italics added).
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Smits, R. (2017). From Subordinated to Prominent: The Role of the European Commission in EMU. Reflections on Euro Area Democracy. In: Daniele, L., Simone, P., Cisotta, R. (eds) Democracy in the EMU in the Aftermath of the Crisis. Springer, Cham. https://doi.org/10.1007/978-3-319-53895-2_3
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