CYIL 2014

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EMIL RUFFER

CYIL 5 ȍ2014Ȏ

to stress that the Contracting Parties outside the Eurozone, which have ratified the

TSCG, also have certain access to the Euro Summits. Under Art. 12(3) TSCG, they

“

shall participate in discussions of Euro Summit meetings concerning competitiveness for

the Contracting Parties, the modification of the global architecture of the euro area and

the fundamental rules that will apply to it in the future, as well as, when appropriate and

at least once a year, in discussions on specific issues of implementation of this Treaty

”. This

‘Being There’ seems to be the major benefit for the Member States currently outside

the Eurozone and might serve as an incentive to accede to the TSCG.

The TSCG is primarily designed for the Eurozone members, but participation

of the remaining Member States is not excluded (unlike in the case of the ESM

Treaty). The non-Eurozone Contracting Parties, which have ratified the Fiscal Treaty,

can choose one of the following options under Art. 14(5) TSCG: (i) either it will

apply the TSCG only from its entry into the Eurozone (

“as from the date when the

decision abrogating that derogation [Article 139(1) TFEU] or exemption [as referred to

in Protocol (No 16) on certain provisions related to Denmark] takes effect”

); or (ii) it

declares its intention to be bound at an earlier date by all or part of the provisions in

Titles III and IV of the Fiscal Treaty.

4. Exits to intergovernmental avenues policed by the CJEU: the

Pringle

case

Mr. Thomas Pringle, a member of the Irish Parliament, claimed before the Irish

courts that the amendment of the TFEU by the Decision 2011/199 (adopted in the

simplified revision procedure) was unlawful. He argued that the amendment entailed

an alteration of the competences of the EU and was inconsistent with provisions of the

founding Treaties (TEU/TFEU) concerning economic and monetary union and with

general principles of EU law. Further, Mr. Pringle claimed that by ratifying, approving

or accepting the ESM Treaty, Ireland would undertake obligations incompatible with

those Treaties.

Accordingly, the Supreme Court of Ireland decided to refer preliminary questions

to the CJEU on the validity of Decision 2011/199 and on the compatibility of the

ESM with EU law. In order to clear uncertainty as soon as possible, the President of

Such was the case of the Czech Republic under the current government, which in its resolution No. 189

of 14 March 2014 decided to accede to the TSCG according to its Art. 15. However, the government

also decided to subject the accession to a three fifths (qualified/constitutional) majority vote in both

chambers of the Czech Parliament (the Senate and the Chamber of Deputies). This procedure was

chosen due to the alleged transfer of competences effected by the TSCG, despite the opposite advice

from the Legal Service of the Ministry of Foreign Affairs, which claimed that there was no transfer of

competences to the EU institutions and the simple majority vote in the Parliament would be sufficient.

As a consequence, since the coalition government does not possess the qualified majority of 120 (out

of 200) votes in the Chamber of Deputies, the ratification procedure is rather cumbersome and at the

mercy of the opposition political parties and their support.

Option (i) was chosen by Denmark and Romania (application of Titles III and IV), as well as Bulgaria

(application of Title III). Option (ii) – with attendance at the Euro Summits but no application of

Title III and/or IV was chosen by Hungary, Lithuania, Poland and Sweden (and prospectively also the

Czech Republic).