The Currency of Solidarity

The Transformation of the Economic and Monetary Union: Solidarity, Stability, and the Limits of Judicial Authority

“…43 He therefore qualifies the OMT programme as one of the 'most essential manifestations' of the currency transformation, and specifies that the Court could not disapprove of manifestations which the political leaders 'decided on, or approved of, at the height of the crisis'. 44 But I am not entirely convinced that the ECB's OMT programme was an 'essential manifestation' of the change in the Founding Contract. The Member States did not direct the ECB to adopt the OMT programme, nor is that programme the inevitable consequence of the decision of the Member States to set up a Banking Union.…”

“…This duty is not merely the principle of loyalty in Article 4(3) TEU, however, but a specific 'expression of basic solidarity' which 'connects the law to the Contract that grounds it'. 31 This sounds fairly esoteric, and the reason may have to do with the fact that Borger wants to avoid grounding the Court's duty only in a concrete Treaty provision. The whole point of this part of The Currency of Solidarity, after all, is to show that the EMU's transformation was deeply at odds with the law, so that a solution can only be found outside of it.…”

“…The whole point of this part of The Currency of Solidarity, after all, is to show that the EMU's transformation was deeply at odds with the law, so that a solution can only be found outside of it. 32 After rejecting a Schmittian approach which would qualify the entry into force of Article 136(3) TFEU as an exercise of 'de facto power', 33 Borger notes that the change in the Founding Contract was 'a political act, and exercise of constitutional power outside the law' which however 'does receive recognition in the law'. 34 It is not quite clear what 'constitutional power outside the law' means.…”

“…32 After rejecting a Schmittian approach which would qualify the entry into force of Article 136(3) TFEU as an exercise of 'de facto power', 33 Borger notes that the change in the Founding Contract was 'a political act, and exercise of constitutional power outside the law' which however 'does receive recognition in the law'. 34 It is not quite clear what 'constitutional power outside the law' means. Borger relies in this regard on a distinction between a 'constitutional document' and the wider 'constitutional settlement' made by Eijsbouts, Beukers and Reestman.…”

Comparative Federalism and Covid-19

“…The issues of solidarity and cooperation flow like subterranean rivers in the EU, underlying every political and legal debate on its future (Battaglia 2020;Borger 2020), be it in areas such as migration, tax policy, economic integration, or even Brexit. Solidarity, federal loyalty, and cooperation are at stake in federal systems and federalising processes generally.…”