The EU’s unconstitutional treaties

Measures taken to tackle the eurozone crisis up to now have trampled all over EU and national law.

As European leaders meet to discuss what they should do next to respond to the eurozone’s economic crisis, it is worth considering how its previous responses have placed the European Union in a deep constitutional crisis.

In December, for example, the stability treaty – ‘the treaty on stability, co-ordination and governance in the European monetary union’ – and the treaty establishing the European Stability Mechanism (ESM) were trumpeted as solutions to the crisis. They were, rather, examples of how to pretend to rescue the euro, fail to do so, and in the process throw European and national constitutional law overboard.

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Here are the four reasons why this is so.

Firstly, the two treaties are simple inter-governmental treaties; neither is a part of EU law, even though fiscal and monetary policies are already a fundamental competence of the Union. By taking fundamental decisions on the way European competences are organised and executed outside EU treaties, member states are opting out of Union law. They are therefore undermining the integrity of EU law. They are also undermining national constitutional law.

National constitutions establish a thick framework that conditions the way in which power is transferred to the EU and the way in which the EU operates and takes decisions. National constitutions leave no room for the transfer of sovereignty to mere inter-governmental processes. But that is what has been done through the stability and ESM treaties. The very choice of such a form is a breach of national constitutional law.

Secondly, Article 7 of the stability treaty radicalises the move towards ‘reversed qualified majority voting’ on fundamental decisions regarding economic policy co-ordination. In essence, any decision on whether a eurozone state has run an excessive deficit and whether sanctions should be imposed on it will now be adopted if the European Commission and a qualified minority of member states are in agreement. To take such a deeply political decision on the basis of the opinion of the Commission and a minority of states constitutes a radical breach of the democratic principle.

Thirdly, Article 8 of the stability treaty says that the European Court of Justice (ECJ) will review whether member states have correctly introduced into their national constitutions a ‘golden rule’: thou shall not run budget deficits. This requires the ECJ to decide on the validity of decisions that national peoples take about their constitutions. If the French constitution is reformed to comply with the ‘golden rule’, and the Commission or one member state is still dissatisfied with that reform, the ECJ will be forced to review the validity of a democratic, constitutional decision taken by the French people. This contravenes the EU’s principle of respect of the constitutional identity of member states, and the primacy of decisions taken by the people. If the people are not sovereign, there is no democracy to speak of.

Fourthly, the ESM treaty conditions future financial assistance on ratification of the stability treaty. This breaches Union law, in particular, Article 122.2, which establishes that member states should receive assistance in case of exceptional events beyond their control. It was this article that was invoked to provide the legal basis of the Irish, Portuguese and second Greek bail-out programmes.

The implicit premise of each of these programmes was, therefore, that these countries’ fiscal troubles amounted to exceptional events beyond their control. If so, it surely cannot be that such an obligation is limited or constrained by a rule that is merely a provision of an international agreement outside Community law.

Agustín José Menéndez is a lecturer injurisprudence at the University of León and a fellow at ARENA, the Centre for European Studies at the University of Oslo.