234 / 532
218
EMIL RUFFER
CYIL 5 ȍ2014Ȏ
7. Conclusion
As we have seen, the traffic on intergovernmental avenues is quite heavy these
days, and significant instruments in response to the sovereign debt crisis (namely
ESMTreaty, Fiscal Treaty and SRF Agreement) were adopted outside the framework
of EU law under the rules of public international law. It could have been expected
that the creative and pragmatic use of intergovernmental instruments will not pass
unnoticed. Indeed, the validity of the Decision 2011/199 and the compliance of the
ESM Treaty with EU law were challenged in the
Pringle
case. But the CJEU, in a
much discussed judgement with far reaching constitutional implications, confirmed
the choices made by the Member States governments and the EU institutions. On
the one hand, the Court was praised on several occasions that it “
pragmatically and
elegantly rejected in Pringle the EU law objections to the ESM
”.
71
On the other hand,
it was subject to a devastating criticism that it “
resorts to whichever type of argument
affords at least a semblance of justificatory argumentation to uphold the ESM
”.
72
Despite the criticism, the CJEU was joined by the influential FCC, which
also approved the ratification of Decision 2011/199, the ESM Treaty and TSCG
in Germany, thus removing a major obstacle from the intergovernmental road.
However, it remains to be seen whether the recourse to instruments outside the EU
law will become a lasting trend, or whether the proclamations contained in both the
TSCG and the SRF Treaty to incorporate them back into the EU legal framework
will be fulfilled. As we have implied above, the decision on the method of such
incorporation, i.e. ordinary or simplified revision procedure or acts of secondary law
(or combination thereof ), will not be an easy and obvious one. So it remains to be
seen whether it will be more of a Bob Dylan or Ray Charles song.
73
71
To give just one example of many positive voices, see S. Adam, F. J. M. Parras: The European Stability
Mechanism through the Legal Meanderings of the Union’s Constitutionalism: Comment on Pringle,
38
E.L. Rev.
848 (2013), p. 864.
72
G. Beck: The Court of Justice, Legal Reasoning, and the Pringle Case – Law as the Continuation
of Politics by other Means, 39
E.L. Rev.
234 (2014), p. 249. He goes on to say that
“To assert or
imply that the Court’s use of teleological, literal and genetic interpretative criteria could serve as a model for
methodologically justified approach to judicial argumentation ignores that law must provide a constraint
on politics, especially in situations where political opportunism and influential financial interest threaten to
colonise political decision-making.”
73
“
Hit the road Jack and don’t you come back no more
”, a chorus line from the ‘Hit the Road Jack’ song
written by Percy Mayfield in 1960, with the most famous version recorded by Ray Charles and released
in 1961 on the ABC-Paramount label.