223 / 532
207
THE INTERGOVERNMENTAL AVENUES OF EUROPEAN INTEGRATION…
the CJEU decided to grant the Supreme Court’s request and apply the accelerated
procedure to this case, lodged at the Court on 3 August 2012.
20
Further, the Court
considered this case to be of exceptional importance and decided to refer the case to
the full Court, consisting of all 27 judges.
21
The View of Advocate General Juliane
Kokott was delivered on 26 October 2012 and the CJEU’s judgement followed on
27 November 2012. We shall look at the three issues addressed in the preliminary
ruling procedure and briefly comment the outcome of the proceedings.
4.1 Decision 2011/199
By Decision 2011/199 the European Council used the possibility of amending
the TFEU by a simplified procedure,
22
and it had to do so in a sovereign debt crisis
situation. However, this procedure may be used (i) only with respect to the provisions
on the internal policies and actions of the EU (Part Three of the TFEU) and (ii)
may not increase the competences conferred on the EU in the Treaties. Mr. Pringle’s
lawyers argued that both these conditions were allegedly breached.
Before dealing with the substance of Decision 2011/199, the Court had to deal
with its own jurisdiction, since what it was about to launch was nothing less than the
judicial control of the constitutionality of constitutional change.
23
The CJEU did not
hesitate much in asserting its jurisdiction and, to be fair, presented persuasive reasons
to do so:
“Since it is necessary that compliance with those conditions be monitored in order
to establish whether the simplified revision procedure is applicable, it falls to the Court, as
the institution which, under the first subparagraph of Article 19(1) TEU, is to ensure that
the law is observed in the interpretation and application of the Treaties, to examine the
validity of a decision of the European Council based on Article 48(6) TEU.”
24
The Court then held that the challenged amendment related – both in form and
content – to the internal policies and actions of the EU, and consequently the first
of those conditions is satisfied.
Firstly, the amendment did not encroach on the exclusive competence of the
EU (Part One of the TFEU) in the area of monetary policy for the Member States
whose currency is the euro. The CJEU explained that, while the primary objective
20
Order of the President of the Court of 4 October 2012.
21
The significance of the case was further highlighted by intervention of 12 Member States (Ireland,
Belgium, Germany, Greece, Spain, France, Italy, Cyprus, the Netherlands, Austria, Slovakia and the
United Kingdom, as well the European Parliament, the European Commission and (for the first time)
the European Council, which defended the legality of its decision.
22
Without convening a Convention composed of representatives of the national Parliaments, of the
Heads of State or Government of the Member States, the European Parliament and the Commission.
23
B. de Witte and T. Beukers,
op. cit.
in
supra
note 9, p. 826. The CJEU actually already dealt with a
similar issue with regard to the Maastricht Treaty, where it declined its jurisdiction to examine the
legality of amendment of founding Treaties in the preliminary ruling procedure (see C-253/94 P
Roujansky v. Council
, ECLI:EU:C:1995:4, para. 11). But an amendment by means of a European
Council Decision, which had to follow the conditions of simplified revision procedure, was arguably
a different matter.
24
C-370/12
Pringle
, para. 35.