233 / 532
217
THE INTERGOVERNMENTAL AVENUES OF EUROPEAN INTEGRATION…
On the other side of the spectrum, M. Messina argues that the incorporation
could take the form of either (i) a Treaty amendment in simplified revision procedure,
or (ii) EU secondary legislation based on legal basis of Art. 20 TEU and/or Art. 136
TFEU.
67
However, the second option does not seem to address the problem raised by
K. A. Armstrong with regard to the ‘balanced budget rule’; for the rest of the TSCG
provisions, this could be the feasible method to bring the fiscal coordination and
governance back into the EU legal framework.
Further, the SRF Agreement foresees a similar course of events, albeit at a later
date.
68
With these two instruments incorporated, one might ask whether the ESM,
given its close link to the TSCG, should not be taken on board of EU Treaties as
well. However, in the case of the ESM, the recourse to EU secondary legislation is
much more problematic, and enhanced cooperation cannot be used. As the CJEU
clearly stated in
Pringle
case, the EU has no competence to create a mechanism such
as the ESM.
69
For the incorporation of the ESM we would thus need a TEU/TFEU
amendment, arguably increasing the Union’s competence and thus in the form of
ordinary revision procedure.
70
In the context of the above, it seems inescapable that by 2018 the architecture
of the EMU will be once again fundamentally changed, which might trigger some
other changes once the EU primary law will be opened and subject to amendments
(e.g. certain institutional changes proposed by the European Parliament). However,
fear not the future, dear reader – the system can hardly get any more complex to
navigate than the current one, with the intergovernmental exits and parallel avenues
along the EU speedway.
equally fundamental institutional implications for the Community and for the Member States,
would be of
constitutional significance and would therefore be such as to go beyond the scope of Article 235
. It
could be brought about only by way of Treaty amendment
.” (para. 35, emphasis added)
67
M. Messina,
op. cit.
in
supra
note 64, pp. 414-416.
68
Art. 16(2) of the SRF Agreement provides the following: “
Within ten years of the date of entry into force of
this Agreement, at the latest, on the basis of an assessment of the experience with its implementation contained
in the reports drawn up by the Board in accordance with paragraph 1, the necessary steps shall be taken, in
accordance with the TEU and the TFEU, with the aim of incorporating the substance of this Agreement
into the legal framework of the Union.
” As to the foreseen entry into force of the SRF Agreement, in
Declaration no. 2, made by the Contracting Parties and Observers at the Intergovernmental Conference
and deposited with the SRF Agreement, the signatories pronounced that they
“will strive to complete
its process of ratification in accordance with their respective national legal requirements in due time so as to
permit the Single Resolution Mechanism to be fully operational by 1 January 2016”.
69
See
supra
note 41. M. Messina (
op. cit.
in
supra
note 64, p. 410) argues in the opposite direction, but
that seems to disregard the CJEU’s reasoning in
Pringle
case.
70
Unlike the TSCG and the SRF Agreement, the ESM Treaty does not contain any provision on future
incorporation into the EU legal framework.