Читать книгу The economic policy of the european union in the context of the covid-19 crisis - Francisco Jesús Carrera Hernández - Страница 10

The legal basis chosen to adopt the Regulation introducing the recovery instrument is art. 122 TFEU (more precisely the Commission’s proposal referring to 122.2 of the TFEU). This legal basis has also been used to adopt the SURE and, on the occasion of the 2008 crisis, it was also used for the introduction of the European Financial Stabilisation Mechanism.

This provision has made it possible to place the projected financial assistance in relation to the Member States within the framework of the EU and has placed under the umbrella of financial solidarity all the measures envisaged in the long term, without prejudice to the use of the ESM, such as I have already indicated, to act in a complementary way. And also, without prejudice to the fact that each specific program requires the use of other legal bases for its implementation, as is the case with the Recovery and Resilience Mechanism.

This is a remarkable aspect if we compare it with the 2008 crisis because then, it was decided to create the ESM and not to articulate the fundamental financial assistance through the EU budget with, for example, a quantitatively reinforce European Financial Stabilisation Mechanism (although then it could not have been permanent). This is one of the reasons why the recovery instrument is temporary. The CJEU in the Pringle affair drew attention to this aspect by pointing out that art. 122.2 of the TFEU prevents the creation of permanent financial assistance mechanisms charge to the EU budget: “The fact that the mechanism envisaged is to be permanent and that its objectives are to safeguard the financial stability of the euro area as a whole means that such action cannot be taken by the Union on the basis of that provision of the FEU Treaty” (FJ 65)47. If one thing has become clear it is that a reform of the treaties is needed to create permanent instruments similar to the recovery instrument.

The truth is that, on the occasion of the previous financial crisis, there was a strong debate on the compatibility with the treaties of financial assistance instruments when it was decided to create the ESM. It was not only a matter of specifying the scope of application of art. 122.2 of the TFEU, but also to ensuring compliance with other provisions of the Treaties, especially art. 125 of the TFEU (no financial co-responsibility or no bail out clause)48. However, the political debate on the implementation of the recovery instrument has almost completely overlooked this problem. The fundamental obstacle we have encountered on the road to its approval has been, not so much the compatibility (with EU law) of the creation of temporary assistance instruments involving (in addition to loans) direct transfers without reimbursement in favor of the Member States financed by common loans to be contracted by the European Commission (corona bonds), but finally their volume. Only the frugal were truly against subsidies. However, beyond the political debate, the question arises as to whether it is possible to doubt the compatibility of such an instrument with EU law, an aspect on which the Council’s Legal Service has ruled without finding any problem49.

The doctrine has already had the occasion to pronounce on this question. Thus, for Goldmann, “coronabonds” would not really be Eurobonds since they would not imply a mutualization of the debt but mutual debts; in other words, we are not dealing with direct contributions of the Member States to the EU budget, but with loans contracted by the EU as a way of financing common projects50. As Ruthardt has pointed out, from this perspective, the question is to know to what extent coronabonds can constitute mutual financial guarantees for the benefit of a specific common project, in accordance with art. 125.1 of the TFEU51.

The CJEU has interpreted art. 125 of the TFEU in relation to the ESM in the Pringle case, noting in this regard that the financial assistance instruments are not incompatible with EU law provided that “the conditions attached to such assistance are such as to prompt that Member State to implement a sound budgetary policy” (FJ 137). This makes it necessary to apply certain conditionality and monitoring to the Member State benefiting from the assistance, aspects present in the recovery instrument.

In the same sentence, the CJEU added that “Article 125 TFEU does not prohibit the granting of financial assistance by one or more Member States to a Member State which remains responsible for its commitments to its creditors” (FJ 137). On the contrary, it can be interpreted that if a Member State ceases to be responsible for its own commitments towards its creditors, it would be violating art. 125 of the TFEU by launching a financial assistance instrument. However, it should not be forgotten that the analysis carried out by the Court in the Pringle case referred to the ESM and assistance instruments based on loans financed by the Member States themselves. It did not refer to the instruments created under art. 122.2 of the TFEU, as the recovery instrument.

Nevertheless, if this interpretation were to be extended to the new recovery instrument, it should be taken into account that there is a certain responsibility of the Member States towards the lenders, not only in their capacity as EU members but also in their capacity as beneficiaries of the aid, through the surveillance procedures introduced52.

Finally, in view of the major contribution of the recovery instrument to alleviate the consequences of the pandemic, the European Parliament, the Council and the Commission have agreed on a budgetary control procedure to be followed in relation to any proposals adopted by the Commission ex art. 122 of the TFEU whenever it can have a significant impact on the Union budget53. The intention is for the budgetary authority to “deliberate on the budgetary impact” of the new proposals within a joint committee, with the participation of the Commission. A “constructive dialogue” must take place in said Committee, for a maximum period of two months, in order to reach a joint understanding of the budgetary impact of the planned legal act.

This is an agreement to retain for the future, in the event of any eventuality that requires the approval of new instruments that have their legal basis in the aforementioned art. 122 of the TFEU.