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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01 Jan 2019
TL;DR: In this paper, the Portuguese Constitutional Court played a pivotal role during the financial crisis that hit Portugal hard after 2008, especially during an international bailout that prevented the country's bankruptcy, and the Court's bold case law may present not only a future risk to the institution but also a shield of protection against temptations to restrict its scope of action.
Abstract: The Portuguese Constitutional Court (CC) played a pivotal role during the financial crisis that hit Portugal hard after 2008, especially during an international bailout that prevented the country’s bankruptcy. The strict conditionality imposed by the Memorandum of Understanding commanded national policies aimed at a sharp expenditure reduction that were brought under constitutional review by both political and legal litigants. The invalidation of some of these policies and the fiscal gap created by the rulings took by surprise not only the executive and the legislature but also the international institutions involved in the financial assistance programme. In this chapter I address the role of the CC during the financial crisis. I claim that the Government should have taken seriously the risk posed by the Constitution and its judicial interpretation to the financial assistance program. I also address the Court’s action in a comparative perspective. I conclude that the Court’s bold case law may present not only a future risk to the institution but also a shield of protection against temptations to restrict its scope of action.
4 citations
Book Chapter•
01 Jan 2016TL;DR: In this paper, the authors explored from both a political science and a legal point of view how to overcome the problem that in the social area not all member states are willing to take further steps to strengthen the integration process of the European Union.
Abstract: The social crisis within the euro zone has showed more than the need for more integration in social areas. It was more than to consolidate the EMU and the way the welfare states within the EU have been developed. It has also triggered new thinking about how a Social Union might look like. This article explores from both a political science and a legal point of view how to overcome the problem that in the social area not all member states are willing to take further steps to strengthen the integration process of the European Union. It particularly examines whether the Fiscal Compact can serve as model for the challenge of differentiated integration. The central question is therefore whether such a model - developed outside the existing political and legal framework - is applicable to the social area, or, in other words, whether a Social Compact is possible, feasible and desirable and under what circumstances.
3 citations
TL;DR: Haircut of public creditors as next step in the escalation of the euro debt crisis? as discussed by the authors explored the boundaries set by the EU Treaty on debt restructuring and showed that haircut on nominal debt infringes no-bailout clause and active involvement by European Central Bank violates ban on monetary state financing.
Abstract: Haircut of public creditors as next step in the escalation of the euro debt crisis? – Exploring the boundaries set by the EU Treaty on debt restructuring – Limitations imposed by no-bailout clause and prohibition of monetary state financing – Standards set in Pringle and Gauweiler – Haircut on nominal debt infringes no-bailout clause – Active involvement by European Central Bank violates ban on monetary state financing – Other forms of ‘soft haircuts’ may be compatible with EU law
3 citations
TL;DR: In this article, the authors explore the three patterns that structure the emerging subfield of higher-court studies in the context of European integration, and identify a clear tendency towards the internationalization of this subfield, which has developed in parallel to the national scholarship on the topic.
Abstract: Boosted by landmark decisions such as Crotty, Solange or Maastricht-Urteil, academic literature on National Higher Courts in the context of European integration has undergone an exponential growth in the last decades. In this article, I aim at mapping this emerging subfield in order to explore the three patterns that structure it. Firstly, a trend towards the consolidation and expansion of literature on the higher courts of the Member States, which has gained relative autonomy from general studies on European law and politics. Secondly, a clear tendency towards the internationalization of this subfield, which has developed in parallel to the national scholarship on the topic. And thirdly, the emergence of a pattern of transdisciplinary dialogue in a subfield featured by the diversity of approaches, methodologies and epistemological backgrounds.
2 citations
TL;DR: Cebulak et al. as mentioned in this paper explored the particular tensions surrounding judicial review in EU external relations and classified them using a two-dimensional framework using a distinction based on policy domains of high and low politics derived from constitutional theory, and external to the CJEU.
Abstract: This article explores the particular tensions surrounding judicial review in EU external relations The tensions are classified using a two-dimensional framework Firstly, a distinction based on policy domains of high and low politics, which is derived from constitutional theory, and external to the CJEU; and secondly a distinction based on legitimizing paradigms of administrative (EU as effective global actor) or constitutional (judicial review as guarantee of fundamental rights) in character and determined by the Court itself Even though one would expect a dominance of the administrative paradigm in the domain of high politics, the Court uses both the administrative and the constitutional paradigm in its external relations case-law The decision on which of these becomes the guiding frame seems to depend more on the policy domain, and be made case by case, which suggests politically sensitive adjudication, rather than a coherent approach to legitimizing the nascent judicial review in EU external relations © 2017 Pola Cebulak, published by De Gruyter Open 2017
2 citations