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in accordance with the Treaty on the European Union and the Treaty on the Functioning
of the European Union, with the aim of incorporating the substance of this Treaty into the
legal framework of the European Union.
”
This ‘Bringing It All Back Home’
60
exercise should then take place before
1 January 2018, but the TSCG is obviously silent on how precisely this exercise
should be executed. It remains disputable at this stage whether the incorporation of
the TSCG into the EU legal framework would enable use of the simplified revision
procedure, given the requirement of not increasing the competences of the Union,
61
or whether the ordinary revision procedure should be used.
62
Still, both scenarios
would constitute an amendment of the EU primary law (especially TFEU) and
full ratification procedures in current 28 EU Member States. However, there is also
a third option of incorporating the content of TSCG solely by acts of EU secondary
law, using enhanced cooperation provisions
63
if necessary, without amending the
Treaties. This might seem plausible since there is already a close connection and
convergence between the TSCG and the existing EU secondary legislation.
64
Thus
the main element to be incorporated into the EU legal framework would probably
be the obligation to introduce the ‘balanced budget rule’ according the Art. 3 TSCG
and the corresponding jurisdiction of the CJEU. This might complicate things again
and even tip the balance in favour of the ordinary revision procedure, although
authors differ substantially on this issue, as we briefly explore below.
In his enlightening article on ‘Community method’, intergovernmental agreements
and ‘hybrid governance’ of the EMU, K. A. Armstrong rightly points out the effects of
the TSCG on domestic legal and constitutional change with regard to the budgetary
procedure.
65
Indeed, if the incorporation of the TSCG were to be achieved by EU
legislative measures, there is a potential constitutional objection that such measures
could not be used in order to seek change to the national constitutional systems of
the Member States.
66
60
Bob Dylan’s fifth studio album, released on 27 March 1965 by Columbia Records, which signalled a
new era in his musical career.
61
Art. 48(6) TEU.
62
Pursuant to Art. 48(2)-(5) the TEU, which normally requires convening a Convention composed of
representatives of the national Parliaments, of the Heads of State or Government of the Member States,
of the European Parliament and of the Commission, unless the European Parliament gives consent
to not convene a Convention. However, this exception should be used in situations when it can be
justified by the limited extent of the proposed amendments, which does not seem to fit the case of
incorporating the TSCG.
63
Art. 20 TEU and Art. 326-334 TFEU.
64
As M. Messina points out, “
The rules of the TSCG largely, though with some important exceptions, reproduce
rules already contained in acts of EU secondary law
.” M. Messina: Strengthening Economic Governance
of the European Union through Enhanced Co-operation: A Still Possible, but Already Missed,
Opportunity, 39
E.L. Rev.
404 (2014), p. 413.
65
K. A. Armstrong: The New Governance of EU Fiscal Discipline, 38
E.L. Rev.
601 (2013), p. 604.
66
K. A. Armstrong draws analogy from the CJEU Opinion 2/94 [
on EU accession to the ECHR
], where
the Court stated the following with regard to the ‘flexibility clause’ in Art. 235 TEC (now Art. 352
TFEU): “
Such a modification of the system for the protection of human rights in the Community, with