The purpose of this paper is to discuss the role of the European Law in the crisis. Laws are rules for a crisis. When humans are living together, that has always been accompanied by conflicts. That’s why law was made. It is a preventive guideline for a future ‘crisis’ - in the small sphere between arguing neighbours, but also for big issues. We will examine how the law was followed here.
The example is the European Stability Mechanism (ESM). After a brief explanation on what the ESM is and why it was established, the compliance with European Law will be discussed by going through the ECJ’s judgement in the “Pringle-Case” from November 2012. Secondly the paper will refer to the German Federal Court’s “ESM- judgement”, which was published two months earlier.
TABLE OF CONTENTS
The ESM – A Breach of the Treaties?
A. Introduction
I. Im Nachhinein ist man immer schlauer
II. Different Interests, different Opinions
1. Cyprus
2. Banking Union
3. OMT
4. Euro Bonds
III. The Law and the Crisis
B. What is the ESM?
I. Overview
II. The idea: No dependence on the market’s rules
III. Legal basis and status
C. Situation before the ESM
D. The ECJ Pringle-Case
I. Correct procedure?
1. Only provisions of Part Three?
a. Monetary Policy
aa. Everything already ‘clear’?
bb. Consultation of the ECB
b. Coordination of the Member States’ economic policies
2. Increases the competences conferred on the Union?
3. Summary
III. Compliance with the other Treaty Provisions
1. Exclusive Union competence
a. Monetary policy.
b. Conclusion of international agreements
2. Prohibition by the Treaties
a. Financial assistance by the Union in exceptional cases (Art. 122 (2) TFEU)
b. Art. 123 TFEU
c. No-bailout clause
IV. Conclusion
E. Judgement of the BVerfG of 12 September 2012
I. Overview
1. National Constitutions and European Law
a. Maastricht Judgement (1992)
b. Treaty of Lisbon (2009)
c. Mangold (2010)
d. Financial assistance for Greece and Rescuing of the Euro (2011)
e. Application in practice
II. The BVerfG’s interpretation of the ESM Treaty (TESM)
1. The budgetary power of the Parliament
2. Limited liability
a. Other shares
b. Capital calls
c. Coverage of Losses
d. First requirement of the Court
3. The German Parliament’s right of information
a. Prohibition of Disclosure and Immunity
b. Interpretation
aa. Systematic approach
bb. Spirit and purpose of the Law
c. Second requirement of the Court
4. Ensuring the BVerfG’s interpretation
5. Summary
III. The BVerfG’s opinion on the ECB’s OMT Program
1. Overview
2. The principle of Article 123 (2) TFEU
3. An unlawful avoidance of the principle?
F. Conclusion
Literature
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