Edited by Herwig C.H. Hofmann, Katerina Pantazatou and Giovanni Zaccaroni
Herwig C.H. Hofmann and Katerina Pantazatou
The present chapter reviews the approach of the book towards the issue of the metamorphosis of the European Economic Constitution, departing from the analysis and the evolution of its micro- and macro-economic structure. Alongside the development of the arguments in the text, it provides an understanding of how this metamorphosis has been induced by the measures taken to counter the economic crisis and reflects over the place of the Economic Constitution within the composite constitution of the European Union.
This chapter is built on the assumption that every constitution is based on certain convictions, a concept as to how a good society should be organized in its various dimensions and how to arrange public institutions towards that goal. Based upon this premise, the contribution makes three points. The first is that the history of the last decade has demonstrated quite painfully that the original economic beliefs behind some of the most important tenets of the European Economic Constitution have proven largely wrong or at least have become very contestable. Second, the European Economic Constitution has been pliable to adjustments, even if the adjustments occurring in the last decade have largely taken a very specific form of EU institutions gradually redefining their mandate. And third, the most serious recent adaptations are time-inconsistent, in the sense that they produce short-term benefits, at the expense, however, of long-term costs. Arguably a viable European economic constitution requires a different kind of metamorphosis.
This chapter explores the interaction between the two layers of the economic constitution, the microeconomic constitution and the macroeconomic constitution, during and after the economic crisis. The author argues that the crisis has induced changes in the principles lying at bottom the architecture of the economic constitution, entrusting - de facto - wider powers to the EU institutions and to the ECB in particular, to allow an adequate response to the emergency. This has ultimately allowed the European Central Bank, during the crisis, to take decisions that can involve serious value judgements. This consequently raises some important constitutional questions concerning the ECB’s independence, as well as the fate of the rule of law, legitimacy and democratic accountability in the EMU constitutional architecture.
The crisis that the Union and the euro area have been experiencing since 2008 has made it possible to judge the flexibility of the EMU framework. Its resolution made innovations hitherto ignored or rejected politically possible. In the economic pillar of the EMU, the lack of constitutional change to date has not prevented a remarkable transformation of the framework of the coordination of economic policies and specifically of their budgetary components. The new European economic governance, which has been taking shape since spring 2010, has transformed what was previously ‘soft’ or ‘minimum’ coordination into ‘strong’ or ‘maximum’ coordination. Three examples illustrate this strengthening of the framework for the budgetary policies: the move from a quantitative budgetary indicator to a qualitative indicator, the move from ex post to ex ante coordination, and the move from vertical to horizontal coordination (i.e. the ‘Euro area fiscal stance’). It remains to be seen whether this evolution opens the way for a more radical change in the European economic constitution.
Bruno De Witte
This chapter criticizes the metamorphosis thesis, i.e. the widely held view in the scholarly literature that the EU'’s economic constitution has been radically transformed during the time of the euro crisis. The criticism is based on a distinction between the EMU part of the economic constitution and the older, and equally important, internal market part. Whereas the latter has hardly changed at all in the past 10 years of economic crisis, the EMU part has certainly seen the adoption of many new rules and institutional mechanisms, although one may doubt whether this has radically modified either the institutional arrangements or the core substantive rules of EMU.
Christian Joerges, Vladimir Bogoeski and Lukas Nüse
This chapter addresses, in a new fashion, the long-standing problem of the relationship between the ‘economic’ and the ‘social’ in Europe before and after the Maastricht Treaty. The authors argue in particular that the current - problematic - state of affairs of the relationship between the two fundamental elements of European integration has been caused by an imperfect compromise between two competing constitutional conceptions. The weakness of this compromise is well reflected in the inadequacy of the measures enacted to counter the economic crisis. To substantiate this argument the authors analyse, in the last part of the chapter, the three countermoves of the Commission: the European Pillar of Social Rights, the revision of the Posted Workers Directive and the idea of an European Unemployment Scheme.
The European Directive on collective redundancies n. 98/59, in line with its predecessor n. 75/129, sets procedural limits to the employer when contemplating the dismissal of a certain number of employees. Some Member States have established restrictive disciplines on collective redundancies, thus including additional burdens of a substantive nature on the employer, not confined to information and consultation, and notification procedures to the public authority. Among them, Greece introduced since 1983 a veto power by the Ministry of Labour, where collective redundancies are potentially prejudicial for employees, taking account of certain reasons of general interest. Tested before the European Court of Justice in AGET Iraklis (C-201/15), this legislation was found to be contrary in concreto to the freedom of establishment (Article 49 TFEU). From this ruling on collective redundancies, a broader reflection can be developed on the balancing exercise between economic freedoms and employment protections proposed by the Court’s case law, in the framework of the principles set by the Treaties, directives and the Charter of fundamental rights of the European Union.
This chapter examines the different legal remedies available under EU law for the legal persons whose position has been affected by the acts adopted by the EU institutions as a part of the different legal instruments built in order to counter the economic crisis. This will be done through an analysis of the recent case law of the Court of Justice, structured in three steps. In the first step, we will examine the possibility to obtain the annulment of the act, having regard of the main legal instrument provided by the Treaties for this purpose (the action for annulment in Art. 263 of the TFEU). In the second step, we will explore the possibility of invoking in front of the Court of Justice an action for damages against the institution concerned. In the third, concluding step, we will look at the remedies at national level, looking at two cases where the Court of Justice has scrutinized the validity of implementing national measures in light of EU law.
In the aftermath of 2008 economic crisis and the 2013 EU budgetary reform, EU budget conditionality emerges as a powerful EU governance tool, used by the EU to reinforce Member States’ commitments under the EU’s economic constitution. In this sense, the strengthened macroeconomic and ex-ante conditionality packages, as well as the novel conditionality policy thinking for the next financial period, suggest an increased conditioning of EU Funds as a lever to important EU economic governance objectives at the Member States level. While conditionality often proves a successful tool to achieve policy change and compliance, its increased use risks upsetting the EU’s most intimate constitutional commitments such as legality, equality between Member States and fundamental rights. This contribution argues that the successful use and operation of budget conditionality at the EU level must necessarily be counter-balanced against the EU’s underlying constitutional principles.