227 / 532
211
THE INTERGOVERNMENTAL AVENUES OF EUROPEAN INTEGRATION…
commitments. In the Court’s interpretation, this provision is not intended to prohibit
either the EU or the Member States from granting any form of financial assistance
to another Member State.
37
The aim of that provision is essentially to ensure that the
Member States follow a sound budgetary policy by ensuring that they remain subject
to the logic of the financial markets when they enter into debt. Accordingly, it does
not prohibit the granting of financial assistance by one or more Member States to
a Member State which remains liable for its commitments to its creditors, provided
that the conditions attached to such assistance are such as to prompt that Member
State to implement a sound budgetary policy.
38
The CJEU concluded that the ESM
and the Member States who participate in it are not liable for the commitments of
a Member State which receives stability support and do not assume liability within
the meaning of the ‘no bail-out’ clause.
39
The Court also confirmed that the ESM was not in breach of the principle of
sincere cooperation established in Art. 4(3) TEU, pursuant to which the Member
States are to refrain from any measure which could jeopardise the attainment of the
EU’s objectives.
40
Then the Court turned to the issue of ‘borrowing the EU institutions’, namely
the allocation, by the ESM Treaty, of new tasks to the Commission, the ECB and
the CJEU itself. It held that such allocation of new tasks was compatible with their
powers as defined in the Treaties (Art. 13 TEU), since the duties conferred on the
Commission and ECB within the ESM Treaty did not entail any power to make
decisions of their own and that the activities pursued by those two institutions within
the ESM Treaty solely committed the ESM.
41
As regards the Court itself, pursuant
to Art. 273 TFEU it has jurisdiction in any dispute between Member States which
relate to the subject-matter of the Treaties, if that dispute is submitted to it under
37
Ibid.
, para. 130. However, some scholars offer much broader reading of Art. 125(1) TFEU, which
would then cover not only guarantees, but also loans and other forms of financial assistance and make
the ESM incompatible with the ‘no bail-out’ clause. See R. Palmstorfer: To Bail Out or Not to Bail
Out? The Current Framework of Financial Assistance for Euro Area Member States measured against
the Requirements of EU Primary Law, 37
European Law Review
771 (2012), pp. 775-778 (written
prior to the
Pringle
judgement).
38
Ibid
., paras. 135-137. However, not ‘anything goes’ and the CJEU set limits as regards the compatibility
with Art. 125 TFEU:
“(…) the activation of financial assistance by means of a stability mechanism such as
the ESM is not compatible with Article 125 TFEU unless it is
indispensable for the safeguarding of the
financial stability of the euro area as a whole
and
subject to strict conditions
.
”
(para. 136, emphasis
added). For a thorough discussion of the ‘indispensability requirement’, see B. de Witte and T. Beukers,
op. cit.
in
supra
note 9, pp. 840-843.
39
Ibid.
, para. 146.
40
Ibid.
, paras. 151-152.
41
Ibid.
, paras. 160-162. It should also be underlined that the CJEU unequivocally rejected the argument
that the Member States should have established enhanced cooperation between themselves (under
Art. 20(1) TEU) in order to be entitled to make use of the Union’s institutions within the ESM. The
Court rightly pointed out that “
enhanced cooperation may be established only where the Union itself is
competent to act in the area concerned by that cooperation
”, which is not the case of a permanent stability
mechanism such as the ESM (paras. 167-168).