Non-EU Legal Instruments (EFSF, ESM, AND Fiscal Compact)

‘Another Legal Monster?’ That was the question asked by the Law Department of the European University Institute on 16 February 2012 in a debate about the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), also known as the Fiscal Compact Treaty. On 2 March 2012, twenty-five Member States of the European Union minus the United Kingdom and the Czech Republic signed the TSCG. A month before, on 2 February 2012, the euro area Member States signed the Treaty Establishing the European Stability Mechanism (ESM Treaty), another legal monster. In both cases, the monstrosity lies in the fact that Member States have preferred to conclude an international treaty, rather than to use the European Union (EU) institutional system. Why did the European Commission not propose a legislative act to establish a financial assistance mechanism in the Eurozone and strengthen the fiscal discipline in the EU? Does this mean the end of community method and a victory for the intergovernmental method? As Herman Van Rompuy commented about the crisis; ‘often the choice is not between the community method and the intergovernmental method, but between a co-ordinated European position and nothing at all’. In 2010, Angela Merkel defended her vision of a new ‘Union Method’ in a speech held at the College of Europe. This approach can be defined by the following description: ‘co-ordinated action in a spirit of solidarity–each of us in the area for which we are responsible but all working towards the same goal’. Each of us means the European institutions and Member States. The new ‘Euro-international’ treaties (or inter se treaties) raise a number of questions regarding their compatibility with EU law, implications for the Union legal system, institutional balance, national sovereignty and democratic accountability. These questions are all the more important because international treaties raise a number of questions on their compatibility with EU law, implications for the Union legal system and institutional balance.

Financial Market Integration and EMU

This chapter discusses the evolution of the market structure in European banking and the level of financial integration in the Eurozone and the interaction with financial regulatory developments. The chapter will address how the creation of the Banking Union’s Single Supervisory Mechanism (SSM) has affected banking market integration in the Eurozone. The chapter also raises related issues concerning monetary policy and banking supervision and some of the challenges in discharging these responsibilities within the Banking Union. This chapter also analyses the Capital Markets Union (CMU) proposal in respect of its important objective to increase the supply of credit from non-bank financial intermediaries to the economy of the European Union (EU) while also raising important prudential regulatory concerns concerning the risks raised by the shadow banking sector.

Euro As Legal Tender (and Banknotes)

The provisions governing the euro as ‘European Single Currency’ are at the core of the Treaty on the Functioning of the European Union’s (TFEU) rules on the Economic Monetary Union (EMU). Since the euro has replaced the former national currencies of the participating Member States and is to substitute the national currencies of any future members of the euro area, it was mandatory to ascribe to the euro the status of exclusive ‘legal tender’ as per Article 128(1) TFEU. This status of the euro seems to be so evident as to be self-explanatory–but only at first glance since the concept of ‘legal tender’ and its implications in European Union (EU) and national private and public law are less clear. A satisfactory concept of legal tender is hard to define and hardly ever given on the EU level–resulting in a striking lack of legal certainty in a great variety of aspects of public and private law.

Financial Assistance to Non-Euro Area Member States

The historic financial crisis that began on the American housing market in 2007 and from there spread all over the globe had tremendous consequences for more or less every country worldwide, especially for their respective public finances. The overall public debt level skyrocketed due to the substantial economic downfall and the necessity to bail out hundreds of financial institutions that had suffered severe losses when the American subprime market collapsed and the money markets froze. Though the States were (with tremendous help by the European Central Bank) finally successful in preventing a complete breakdown of the major financial markets, their intervention left the national budgets and the balance of payments (BOP) of several of them in a devastating condition with insolvencies only being averted by massive external and mainly financial assistance by other States and institutions (especially the International Monetary Fund (IMF)). Some of these states facing such a financial calamity were Member States of the European Union (EU)—a fact having an important normative implication: Other Member States wanting to help financially were bound by the normative framework of the European Union Treaties. And the same was obviously true for the European Union itself where it wanted to initiate any form of (financial) assistance.

ESCB/Eurosystem/National Central Banks

The European System of Central Banks (ESCB) and the Eurosystem respectively is quite a unique legal structure which is historically unprecedented. As part of the European Union (EU), it is necessarily based on the rule of law and needs to be clearly defined in the primary law as such. Thus, the ESCB was included in the European Union’s constituting Treaties by the Treaty of Maastricht in Articles 8 and 106 of the Treaty establishing the European Community (TEC). However, it reflects a typical European Union compromise.

History of an Incomplete EMU

The Economic and Monetary Union (EMU) created in 1992 by the Maastricht Treaty was famously incomplete. The decision to create a European single currency was taken without agreeing at the same time on the introduction of traditional accompanying features of some other monetary unions, namely: substantial financial transfers from richer to less developed regions, a credible framework for macroeconomic policy coordination, and European-wide provisions for banking regulation and supervision, to name but a few. The 1992 Maastricht Treaty set out an unfinished, or ‘lopsided union’, with the predominance of monetary union over economic union. The titles of the multiple reports published since 1992, such as the Van Rompuy report of 2012, ‘Towards a Genuine Economic and Monetary Union’, the Five Presidents’ Report of 2015, ‘Completing Europe’s Economic and Monetary Union’, and the Commission’s ‘Reflection Paper on the Deepening of the Economic and Monetary Union’ of 2017 highlight this lopsidedness very well.

Substantive Legal Obligations of EUro area Member States

This chapter considers the substantive legal obligations of those European Union (EU) Member States that have adopted, or are to adopt, the euro as their currency. In other words, what is the nature of the burdens and obligations that a participating Member State is required to accept in return for its admission to the benefits of euro area membership?

EU Institutions Representing Member States’ Governments

The Council of the European Union (EU) occupies a central place in the Economic and Monetary Union (EMU), even more so than in any other Union policies. It exercises in this area a variety of roles going from a forum for coordination of national policies to legislative functions and executive powers. The different crises that affected the Union and in particular the euro area in the last ten years have strengthened its prominent position, in no small part due to the Council’s ownership by the Member States. Alongside the Council, the Euro Group, which is presided by a fixed-term president, has developed itself as the informal forum where Ministers from the Member States whose currency is the euro discuss matters of common interest. Its role has been decisive, in particular in the Cypriot and Greek crisis, which could have put into question the very existence of the euro area as a whole.

The International Dimension of EMU: The Interplay Between the Global Financial Stability Architecture and the European Union

It is a truism that the European Union’s self-proclaimed autonomy may be a helpful concept in legal terms–primary to preserve the monopoly of the European Court of Justice to interpret European Union (EU) law–but it is equally clear that the EU is to a large extent influenced by the decisions and policies of other international institutions. The present chapter aims to assess this external influence in relation to a specific, but core dimension of the EU, the Economic and Monetary Union (EMU). More specifically, we will assess the influence of what these days is known as the Global Financial Stability Architecture (GFSA), on the EMU. As will be further explained below, the GFSA is a network of the key global financial institutions that collect data, conduct research, provide insight and propose rules of conduct for the financial sector. Its mission is to rethink (global) macroeconomic policy to make economies more resilient–how to steer the economy clear of risks that could lead it to collapse; how to deal with real-time crises; and how to initiate recovery. Its primary method is to find out how differing components of financial markets act and react to one another, and to propose prudential regulation that shapes the behaviour of private financial service providers, of governments and of central banks.

The Economics of European Monetary Integration: The Pros and Cons of EMU Membership

The recent global crisis challenged the stability of the European monetary integration process. That process, which is closely linked to the evolution of the European Monetary Union (EMU), has gone through two stages: the Common Market era, which ran from 1958 until 1993, and the Monetary Union era, which started in 1994 and gained new impetus after the global crisis with the publication of the Four Presidents’ Report in December 2012. The aim of the EMU has been to exchange rates, inflation and interest rates in order to boost capital mobility and trade, thereby promoting the growth of member countries. Thus far, the data shows that there has been nominal convergence of inflation and interest rates, while real convergence of per capita income has not occurred among the original euro area participants.