The Euro-crisis and the courts : Judicial review and the political process in comparative perspective
01 Jan 2014-Berkeley Journal of International Law (University of California, Berkeley, School of Law)-Vol. 32, Iss: 1, pp 64
TL;DR: In this paper, the authors provide a comprehensive analysis of decisions by high courts in Estonia, France, Germany, Ireland, Portugal and the EU with the aim to discuss the role of the judiciary in fiscal affairs.
Abstract: The Euro-crisis and the legal responses to it have profoundly changed the constitutional architecture of the Economic and Monetary Union (EMU) leading to the introduction of tighter budgetary rules, new mechanisms of financial stabilization and a comprehensive framework of economic adjustment for states in fiscal troubles. Yet, during the last years, the legal measures enacted by the European Union (EU) and the member states to respond to the crisis have increasingly fell prey to the scrutiny of courts, both at the national and supranational level. This paper provides a first comprehensive analysis of decisions by high courts in Estonia, France, Germany, Ireland, Portugal and the EU with the aim to discuss the role of the judiciary in fiscal affairs. The paper identifies a trend of increasing judicial involvement in EMU and explains it in light of the intergovernmental approach followed to respond to the Euro-crisis. As the paper argues, the choice of an intergovernmental management of the crisis, with frequent resort to international agreements outside the framework of EU law, has paradoxically produced greater judicialization than what would have occurred had the member states acted within the EU legal order. As the paper suggests, though, constitutional arguments related to expertise, voice and rights still plead in favor of letting the political branches take the lead in fiscal affairs. Hence, the paper concludes by indicating that future reforms of the EMU should be carried out through EU legislation – which is more legitimate in democratic terms (because of the political guarantees that surround law-making in the EU) and more secure in judicial terms (because of the more limited space for judicial overreach). Yet, the paper also underlines how the EU political process needs urgently to be reformed in order to improve its legitimacy and democracy.
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TL;DR: This article argued that post-crisis governance departs from the mechanisms of legal and political accountability present in previous forms of EU decision-making without substituting new models of accountability in their place.
Abstract: How should decision-making under EU economic governance be understood following the euro-crisis? This article argues, contra existing depictions, that the post-crisis EU has increasingly adopted methods of decision-making in the economic field which marry the decision-making structure of inter-governmentalism with the supervisory and implementation framework of the Community Method. While this ‘post-crisis’ method has arisen for clear reasons – to achieve economic convergence between eurozone states in an environment where previous models of decision-making were unsuitable or unwanted – it also carries important normative implications. Post-crisis governance departs from the mechanisms of legal and political accountability present in previous forms of EU decision-making without substituting new models of accountability in their place. Providing appropriate channels of political and legal control in the EU's ‘new’ economic governance should be seen as a crucial task for the coming decade.
85 citations
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TL;DR: In this paper, the authors focus on the legitimacy problems of the major institutional actors in the Eurozone crisis, including the ECB, Council, Commission, and EP, as they responded to the crisis in coordination with other policy actors and in communication to the public.
Abstract: In response to the Eurozones crisis of democratic legitimacy, EU institutional actors have sought to ameliorate the Eurozones deteriorating output policy performance and to respond to citizens increasingly volatile political input by reinterpreting the throughput processes focused on governing by the rules and ruling by the numbers without admitting it. Such reinterpretation by stealth risks generating further problems for legitimacy. After defining the three criteria of legitimacy and how they play out differently for political and technical actors through fast and slow burning phases of the crisis, the paper focuses more closely on the legitimation problems of each of the major institutional actors in turn ECB, Council, Commission, and EP as they responded to the crisis in coordination with other policy actors and in communication to the public. The paper also offers proposals for short and medium term remedies to Eurozone problems, with a final note on the future of EU governance.
61 citations
TL;DR: The Euro crisis reforms as major example of interstitial institutional change in the EU as mentioned in this paper, and forms of institutional change : unusual sources of law, new tasks for the EU institutions, new organs, competence creep, institutional hybrids, and more differentiated integration.
Abstract: Euro crisis reforms as major example of interstitial institutional change in the EU - Forms of institutional change : unusual sources of law, new tasks for the EU institutions, new organs, competence creep, institutional hybrids, and more differentiated integration - Question whether some or all of this amounts to a ‘constitutional mutation’ of the EU legal order - Reasons to doubt whether the constitutional fundamentals have changed - Alternative thesis: increased institutional variation, deepening the differences between EMU law and the rest of EU law.
39 citations
TL;DR: The euro crisis has called into question the constitutional compromises formalized in and by the Lisbon Treaty as mentioned in this paper, which are necessarily structured on interstate compromises, because they derive from the aggregation of states with different demographies/capabilities and national identities.
Abstract: The euro crisis has called into question the constitutional compromises formalized in and by the Lisbon Treaty. The compromise between different (supranational and intergovernmental) interests, the compromise between member states engaged in building the Economic and Monetary Union (EMU) and those allowed to opt out of it and the compromise, within the EMU, between a centralized approach to monetary policy and decentralized economic policy. Unions of states, as the European Union (EU) is interpreted to be, are necessarily structured on interstate compromises, because they derive from the aggregation of states with different demographies/capabilities and national identities. However, in the EU, contrary to the other unions of states (as the United States and Switzerland), the aggregation has not been supported by an agreed constitutional framework from which to derive procedures and discourse for solving disputes and constituting new interstate compromises. This is why the wrecking of those comprom...
24 citations