CYIL 2014

EMIL RUFFER

CYIL 5 ȍ2014Ȏ

7. Conclusion As we have seen, the traffic on intergovernmental avenues is quite heavy these days, and significant instruments in response to the sovereign debt crisis (namely ESMTreaty, Fiscal Treaty and SRF Agreement) were adopted outside the framework of EU law under the rules of public international law. It could have been expected that the creative and pragmatic use of intergovernmental instruments will not pass unnoticed. Indeed, the validity of the Decision 2011/199 and the compliance of the ESM Treaty with EU law were challenged in the Pringle case. But the CJEU, in a much discussed judgement with far reaching constitutional implications, confirmed the choices made by the Member States governments and the EU institutions. On the one hand, the Court was praised on several occasions that it “ pragmatically and elegantly rejected in Pringle the EU law objections to the ESM ”. 71 On the other hand, it was subject to a devastating criticism that it “ resorts to whichever type of argument affords at least a semblance of justificatory argumentation to uphold the ESM ”. 72 Despite the criticism, the CJEU was joined by the influential FCC, which also approved the ratification of Decision 2011/199, the ESM Treaty and TSCG in Germany, thus removing a major obstacle from the intergovernmental road. However, it remains to be seen whether the recourse to instruments outside the EU law will become a lasting trend, or whether the proclamations contained in both the TSCG and the SRF Treaty to incorporate them back into the EU legal framework will be fulfilled. As we have implied above, the decision on the method of such incorporation, i.e. ordinary or simplified revision procedure or acts of secondary law (or combination thereof ), will not be an easy and obvious one. So it remains to be seen whether it will be more of a Bob Dylan or Ray Charles song. 73

71 To give just one example of many positive voices, see S. Adam, F. J. M. Parras: The European Stability Mechanism through the Legal Meanderings of the Union’s Constitutionalism: Comment on Pringle, 38 E.L. Rev. 848 (2013), p. 864. 72 G. Beck: The Court of Justice, Legal Reasoning, and the Pringle Case – Law as the Continuation of Politics by other Means, 39 E.L. Rev. 234 (2014), p. 249. He goes on to say that “To assert or imply that the Court’s use of teleological, literal and genetic interpretative criteria could serve as a model for methodologically justified approach to judicial argumentation ignores that law must provide a constraint on politics, especially in situations where political opportunism and influential financial interest threaten to colonise political decision-making.” 73 “ Hit the road Jack and don’t you come back no more ”, a chorus line from the ‘Hit the Road Jack’ song written by Percy Mayfield in 1960, with the most famous version recorded by Ray Charles and released in 1961 on the ABC-Paramount label.

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