New Economic Governance in the European Union: Another Constitutional Battleground?

Abstract

The regulatory responses to the global economic and financial crisis and the subsequent euro area sovereign debt crisis raise serious constitutional questions not only at the supranational, European level, but mainly also at the level of the Member States; developments, fuel the long-standing debate on the relationship between the supranational legal order and the (constitutional) legal orders of the Member States, or as Micklitz and Schebesta (The European Court of Justice and the Autonomy of the Member States, 2012) put it 'the challenge […] to define the limits of European integration inward looking'. This may put the much referred to cooperation and dialogue between the national highest (constitutional) courts and the CJEU to the tested yet again, in particular when observing the trend with some national highest (constitutional) courts to 'not only perceive themselves as the ultimate guardian of fundamental rights, but increasingly also more broadly as defenders of a broader constitutional identity.' Hereafter, this contribution commences with a brief flashback to the beginnings of European economic and monetary union (EMU) highlighting that the current judicial discourse on European economic governance and its democratic credentials is anything but new, as it finds its roots in the Treaty on the European Union. This contribution provides an overview of the new legal framework pertaining to economic policy coordination in the euro area and its impact on the national policy sphere is offered, followed by an analysis of a selection of decisions by national highest (constitutional) courts, thereby focusing on their dealing with the constitutional impact of various aspects of the European regulatory response to the crisis. In the concluding section a preliminary answer to the question raised in the title of this contribution is given.

The judicialisation of EMU politics: Resistance to the EU's new economic governance mechanisms at the domestic level

“…Following the collapse of the government, Geert Wilders stressed that he wanted European issues to be the central theme of the campaign for the September election (Van Kessel 2015). Arguably, filing the legal complaint against the ratification of the ESM in May 2012 was part of this strategy; its legal grounds were so weak that the court rejected a substantive review of the case (Amtenbrink 2014). While the Austrian case has a similar opportunistic timing and lack of legal grounds to the Dutch case, it differs in every other aspect.…”

“…On the other hand, most legal scholars agree that the EU's answer to the crisis has infringed on democracy and deconstructed the formerly existing legal apparatus (Höpner & Schäfer 2012;Chalmers et al 2016). They argue that, rather than strengthening the rule of law, the CJEU expost legitimation of crisis measures has undermined, at least partially, some key EU legal principles (Contiades 2013;Adams et al 2014;Fabbrini 2014;Amtenbrink 2014;Dawson et al 2015;Hinarejos 2015;Beukers et al 2017).…”