CYIL vol. 12 (2021)
CYIL 12 (2021)
7. The limits deriving from the autonomy of the Union system. The case of the functions attributed to the Union institutions by the ESMT and the TSCG Although there are some precedents relating to the involvement of institutions in the implementation of acts of the representatives of the Member States meeting within the Council, this phenomenon is a distinctive feature of the most recent practice established by the ESMT and the TSCG 115 . Both the EC and the European Central Bank (ECB) are also entrusted with important tasks in the sphere of cross-compliance policy to which financial assistance is granted. It is indeed in these institutions that it is up to the compliance with the agreed conditions (art. 13, par. 7) 116 : the importance of this control function is confirmed by the expectation that the EC report should be taken into consideration by the Administrative Council for the purpose of the decision on the payment of installments subsequent to the first under the various assistance programs to an evaluation conducted by the EC in concert with the ECB, the granting of additional funds to States that have obtained precautionary financial assistance is also subject (art. 14) 117 . Finally, under the secondary market support mechanism, ESMT interventions aimed at avoiding financial contagion are subject to recognition of the existence of exceptional circumstances on financial markets and of risks that threaten financial stability, which must be ascertained from an analysis of the ECB (art. 18, par. 2). In particular, the same reconditioning of the Fiscal Compact 118 , prescribed by its art. 16 in the EU treaties, provokes conflicting reactions: negative for those who do not want to carve in stone the golden rule of budget balance, positive for those who see in that Treaty a defeat of the community method and the principles of democracy, accountability and transparency, as well as a fragmentation and weakness of the institutional framework. Various tools could be used for this purpose. First of all, the experience gained in integrating the Schengen agreements and their acquis could be reviewed, proceeding with the revision of the EU and TFEU treaties and using opt out protocols for states that do not wish to share it. Or we could leave agreements on the international stage alive, gradually transforming into parts of the EU those parts that find the consensus of the Member States, as is happening for the Prüm agreements. The EC may recommend to States parties subject to excessive deficit procedures the adoption of measures which, for euro area Member States, become mandatory unless the qualified majority of the contracting parties are opposed, according to the reverse qualified majority rule (art. 7). The EC also presents a report on compliance with the balanced budget 115 PEERS, S. Towards a new form of EU law?, The use of EU Institutions outside the EU legal framework, in European Constitutional Law Review, 9 (1), 2013, pp. 37ss. 116 LIAKOPOULOU, I. Aspetti comunicativi nel meccanismo decisionale del sistema centrale bancario europeo, in LIAKOPOULOU, I. (eds.), Le politiche comunitarie dell‘Europa allargata, ed. Libreria Universitaria , Padova, 2011, pp. 409ss. KIRSHNER, J.A. International bankruptcy. The challenge of insolvency in a global economy. University of Chicago Press, Chicago, 2018, pp. 146ss. JACOB, A., KOCHENOV, D. The enforcement of EU law and values. Ensuring Member States compliance , Oxford University Press, Oxford, 2017. BINDER, J.H., SINGH, D. Bank resolution. The European regime, Oxford University Press, Oxford, 2016, 117 See from the CJEU the case: C-105/15 P, ECB v. Malli of 20 September 2016, ECLI:EU:C:2016:702, published in the electronic Reports of the cases. 118 CONWAY, G. European Union law , ed. Routledge, London & New York, 2015. CREEL, J., HUBERT, P., SARACENO, G. The European fiscal compact: A conterfactual assessment, in Journal of Economic Integration , 27 (4), 2012, pp. 539ss.
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