228 / 532
212
EMIL RUFFER
CYIL 5 ȍ2014Ȏ
a special agreement. The Court stated that it could not see any reason why such
agreement should not be given in advance with reference to a class of pre-defined
disputes, as is the case with the ESM Treaty.
42
Finally, on the issue of the general principle of effective judicial protection, the
Court held that it was also not breached by the establishment of the ESM. The CJEU
rightly observed that, when the Member States establish a stability mechanism such
as the ESM, where the TEU and TFEU do not confer any specific competence on
the EU to establish such a mechanism, the Member States are not implementing
EU law, and accordingly Art. 47 of the Charter of Fundamental Rights of the EU,
which guarantees that everyone has the right to effective judicial protection, is not
applicable.
43
4.3 The conclusion and ratification of the ESM before the entry
into force of Decision 2011/199
On the controversial issue of proper sequencing, the CJEU took the view that
the amendment of the TFEU by Decision 2011/199 merely confirmed the existence
of a power possessed by the Member States. Since that decision does not confer any
new power on the Member States, the right of a Member State to conclude and ratify
the ESM Treaty is not subject to the entry into force of Decision 2011/199.
44
This
conclusion was naturally welcomed by the Contracting Parties of the ESM Treaty,
because it did not put their ratification procedures in legal jeopardy and also did not
alert the sensitive financial markets.
However, one cannot escape a certain shadow of a doubt that initially, at least
in the understanding of Germany, Art. 136(3) TFEU was meant to be an ‘enabling’
provision which would authorise the Member States to establish a mechanism which
could otherwise interfere with EU competencies in the EMU area.
45
But what
we got in the end is merely a declaratory provision which confirms the limits of
EU competence and assures Member States of their freedom to act. The question
arises whether the same effect would not be achieved by recalling a fundamental
constitutional provision of Art. 4(1) TEU, which confirms that
“competences not
conferred upon the Union in the Treaties remain with the Member States”.
42
Ibid.
, para. 172.
43
Ibid.
, paras. 179-181.
44
Ibid.
, paras. 184-185.
45
This also seems to be, at least to some extent, the understanding of the FCC, which observed in
its judgement of 18 March 2014: “
Though, compared to the understanding of the Treaties with which
Germany had participated in the foundation of the Economic and Monetary Union,
the introduction
of Art. 136 sec. 3 TFEU and the establishment of the European Stability Mechanism constitute
indeed a fundamental reshaping of the existing Economic and Monetary Union
, because it detaches
its concept, albeit to a limited extent, from the principle of independence of the national budgets which had
characterised it before
” (emphasis added). BVerfG, 2 BvR 1390/12 from 18 March 2014, para. 180 (see
further part 5. below).