Читать книгу The economic policy of the european union in the context of the covid-19 crisis - Francisco Jesús Carrera Hernández - Страница 13

Throughout this introductory chapter, I have sought to explain the meaning of this monograph by accompanying the analysis of the central core of the measures adopted by the EU with reference to the chapters that delve into certain aspects of it. The background, therefore, revolves around the implementation of the recovery and resilience instrument and other measures with financial consequences, beyond the immediate measures adopted in March 2020.

However, and knowing that a selection will always be incomplete, we have decided to incorporate in this monograph another block with two chapters to address related questions that are part of the common thread of the research project in which it is inserted. Thus, on the one hand, Professor Victor Calvete, from the University of Coimbra, analyzes the future prospects for the international dimension of the euro in the context of the pandemic. Finally, Professor Isabel Cabrita, from the University of Lisbon, focuses her study, in a broader universal dimension, on the presentation of the proposal submitted by the EU at the United Nations in line with the search for a global recovery for the future.

*Full Professor of Public International Law. University of La Rioja, Spain. E-mail: francisco-jesus.carrera@unirioja.es.

1.Without prejudice to other publications of the research Group vid. CARRERA HERNÁNDEZ, F. J. (Dir.), Towards a new government of the Economy in the European Union? Aranzadi, 2018.

2.Council Regulation of 18 February 2002 establishing a medium-term financial assistance mechanism for the balance of payments of the Member States (OJ L 53 of 23 February 2002; modified by Regulations 1360/2008 and 431/2009).

3.La gouvernance économique de l’Union européenne. Recherches sur l’intégration par la différenciation, Bruylant, 2014, pp. 641 and 673.

4.In the framework of the application of art. 122.1 TFEU, urgent assistance regulated in Regulation 2016/369 has been mobilized for health issues and medical products (Council Regulation (EU) 2020/521 of 14 April 2020 activating the emergency support under Regulation (EU) 2016/369, and amending its provisions taking into account the COVID-19 outbreak, OJ L 117 of 15 April 2020).

5.The revision of art. 136 TFEU was not intended to confer powers on the EU in relation to the creation of permanent instruments of financial assistance. It limited itself to recalling a competence that already belonged to the Member States themselves. For MEYER-HEINE, the introduction of international mechanisms on the European scene is due to the desire of the States (on that occasion especially Germany) that assistance does not depend on the rules and principles of the Union (“Le TFUE et l’assitance financière à un État membre. Réflexions liées à la mise en place du MES”. Revue du marché commun et de l’Union Européenne, 2014, pp. 29 and 33).

See the position of the Court of Justice of the European Union in Judgment Thomas Pringle, Case C370/12, ECLI:EU:C:2012:756.

6.Vid. Communication from the Commission Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak, OJ C 91 I of 29 March 2020; Communication from the Commission Amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak, OJ C 112 of 4 April 2020; Amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak, OJ C 164 of 13 May 2020; Third amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak, OJ C 218 of 2 July 2020; 4th Amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak and amendment to the Annex to the Communication from the Commission to the Member States on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to short-term export-credit insurance, OJ C 340 I of 13 October 2020; Fifth Amendment to the Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak and amendment to the Annex to the Communication from the Commission to the Member States on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to short-term export-credit insurance, OJ C 34 of 1 February 2021.

Vid. BUENDÍA, L., DOVALO, A., “State aid versus Covid-19. The Commission adopts a temporary framework”, European State Aid Law Quaterly, 2020, p. 3; TAPIA HERMIDA, A. J., “Ayudas estatales frente al COVID-19 y nacionalizaciones de empresas privadas en la Unión Europea”, Diario La Ley, 2020, p. 6; OLESTI RAYO, A., “La Unión Europea y la financiación de las medidas para afrontar la crisis de la Covid-19”, RGDE, 2021, p. 245.

7.Vid. Communication from The Commission to the Council on the activation of the general escape clause of the Stability and Growth Pact, COM /2020/123/FINAL and Declaration of the EU finance ministers on the Stability and Growth Pact in the light of the COVID-19 crisis in https://www.consilium.europa.eu/es/press/press-releases/2020/03/23/statement-of-eu-ministers-of-finance-on-the-stability-and-growth-pact-in-light-of-the-covid-19-crisis/. Vid. ADALID, S., “La flexibilité de la gouvernance économique à l’épreuve de la crise sanitaire”, RAE, 2020/2, p. 335.

8.Communication from the Commission to the European Parliament, the Council, the European Central Bank, the Eropean Economic and Social Committee and the Committee of the Regions, Economic governance review. Report on the application of Regulations (EU) No 1173/2011, 1174/2011, 1175/2011, 1176/2011, 1177/2011, 472/2013 and 473/2013 and on the suitability of Council Directive 2011/85/EU, COM (2020) 55 final of 5.2.2020.

9.Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and social Committee, the Committee of the Regions, The EU economy after Covid-19: implications for economic governance, COM (2021) 662 final of 19-10.21.

10.Art. 1 of Council Regulation 2020/538 reads as follow: “‘The commitment appropriations may be entered in the budget over and above the ceilings of the relevant headings laid down in the MFF where it is necessary to use the resources from the Emergency Aid Reserve, the European Union Solidarity Fund, the Flexibility Instrument, the European Globalisation Adjustment Fund, the Contingency Margin, the specific flexibility to tackle youth unemployment and strengthen research and the Global Margin for Commitments, in accordance with Council Regulation (EC) No 2012/2002 (*1), Regulation (EU) No 1309/2013 of the European Parliament and of the Council (*2), and the Interinstitutional Agreement on budgetary discipline, on cooperation in budgetary matters and on sound financial management” (Regulation of 17 April 2020 amending Regulation (EU, Euratom) 1311/2013 laying down the multiannual financial framework for the years 2014-2020 as regards the scope of the Global Margin for Commitments, OJ L 119 I of 17 April 2020).

In order to address these aspects, a chapter prepared by Felipe Figueiredo Martins (University of Coimbra) has been included in this book, in which he sets out, by way of example, the role played by the European Globalization Adjustment Fund, without prejudice to the fact that this work also presents a broader perspective.

11.Vid. Communication from the Commission to the European Parliament, the European Council, the Council, the European Central Bank, the European Investment Bank and the Eurogroup “Coordinated economic response to the COVID-19 Outbreak”, COM/2020/112/FINAL. Vid. also, Regulation (EU) 2020/460 of the European Parliament and of the Council of 30 March 2020 amending Regulations (EU) No 1301/2013, (EU) No 1303/2013 and (EU) No 508/2014 as regards specific measures to mobilise investments in the healthcare systems of Member States and in other sectors of their economies in response to the COVID-19 outbreak (Coronavirus Response Investment Initiative), OJ L 99 of 31 March 2020. Through Regulation 2020/558, additional flexibility was granted to that provided for in Regulation 2020/460 (Regulation of the European Parliament and of the Council of April 23, 2020 amending Regulations (EU) 1301/2013 and (EU) 1303/2013 regarding specific measures to provide exceptional flexibility in the use of European Structural and Investment Funds in response to the COVID-19 outbreak, OJ L 99 of 2020).

See also Regulation (EU) 2020/559 of the European Parliament and of the Council of April 23, 2020 amending Regulation (EU) 223/2014 with regard to the introduction of specific measures to deal with the outbreak of COVID– 19. Regulation (EU) 2020/560 of the European Parliament and of the Council of April 23, 2020 amending Regulations (EU) 508/2014 and (EU) 1379/2013 in relation to specific measures to mitigate the impact of the outbreak of COVID-19 in the fisheries and aquaculture sector. Regulation (EU) 2020/561 of the European Parliament and of the Council of April 23, 2020 amending Regulation (EU) 2017/745 on medical devices in relation to the dates of application of some of its provisions. All them in OJ L 130 of 2020.

12.The measures adopted are included in the Decisions 2020/545, 2020/546 and 2020/547. All them in OJ L 125 of 2020.

13.Regulation of the European Parliament and of the Council of 30 March 2020 amending Council Regulation (EC) No 2012/2002 in order to provide financial assistance to Member States and to countries negotiating their accession to the Union that are seriously affected by a major public health emergency, OJ L 99 of 31 March 2020.

14.The European Union has adopted measures aimed at mobilizing the EIB group in order to offer liquidity and be able to deploy measures to support companies, sectors and regions. Resources from the Union budget have been earmarked to guarantee the European Investment Fund and the European Strategic Investment Fund. Later, after the agreement reached in the Eurogroup on April 9, 2020, it was decided to create a pan-European guarantee fund to help companies, a component of the triple safety net created at that time.

15.Initially, the ECB launched a temporary purchase program amounting to 750,000 million euros, later extended (vid. Decision (EU) 2020/440 of the European Central Bank of 24 March 2020 on a temporary pandemic emergency purchase programme (ECB/2020, OJ L 91 of 25 March 2020).

16.On April 28, the Commission presented a banking package to facilitate loans to households and companies (Interpretative Communication on the application of the accounting and prudential frameworks to facilitate EU banking lending, COM/2020/169/FINAL). It includes the reform of the regulations on capital requirements, proposing the reform of Regulations 575/2013 and 2019/876. About the Banking Union vid. URBANEJA CILLÁN, J., La Ordenación Internacional y Europea de las Entidades de Crédito. La Unión Bancaria, Tirant Lo Blanch, 2018.

17.Letter of March 25, 2020 signed by Belgium, France, Greece, Ireland, Italy, Luxembourg, Portugal, Slovenia and Spain.

For an analysis of the debate around the compatibility with EU Law, and German Law, of Eurobonds and Coronabonds vid. RUTHARDT, M, “Quelques réflexions autour des corona bonds et leurs enjeux juridiques”, Revue du marche commun et de l’Union Européenne, 2020, pp. 341-348. For this author “le défine découle pas de ce que les corona bonds seraient constitutionnellement impossibles mais du subtil équilibre devant etre préservé entre une telle mesure de solidarité financiere, d›une part, et le maintien d›une capacité du Bundestag de décider de la forme dans laquelle elle serait octroyée, de l›autre. Sauf pour le gouvernement à devoir assumer des guaranties d›une portée étendue, conduisant a une mutualisation directe ou indirecte des dettes des États de telle maniere que l›engagement de la garantie dépendrait uniquement du comportement d›autres États, la porte ne semble pas fermée, C›est désormais a la politique de reprendre la baile” (p. 348).

18.The characteristics of the instrument to support the crisis, within the framework of the ESM, were agreed by the Eurogroup on May 8 and put into operation by the Board of Governors of the ESM on May 15 (See the Eurogroup Declaration on support to the pandemic crisis, May 8, 2020).

The ESM has chosen to make available to all its members lines of credit with enhanced conditionality, or ECCL (pandemic crisis support based on the Enhanced Conditions Credit Line, ECCL). They are credit lines of one year, expandable, destined to finance the health expenses incurred, direct and indirect, as long as they are related to COVID-19 and have occurred as of February 2020. They can be requested until December of 2022. The maximum repayment period is ten years. Details have been published in Term sheet: ESM Pandemic crisis support https://www.esm.europa.eu/sites/default/files/20200508-pcs-term-sheet-final.pdf.

A limit of 2% of the gross national income of the aid applicant has been applied (Vid. Pandemic crisis support. Eligibility assessment conducted by the Commission services in preparation of any evaluation pursuant to art. 6 Regulation (EU) 472/13, art. 13.1 ESM Treaty and art. 3 of ESM Guideline on Precautionary financial assistance, 2020 in https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/financial-assistance-eu/funding-mechanisms-and-facilities/european-stability-mechanism-esm_en).

The only conditionality imposed is that the beneficiary Member State undertakes to use the amounts received solely for that purpose. This commitment is included in an individual Pandemic Response Plan (PRP) https://www.esm.europa.eu/sites/default/files/pandemic_response_plan.pdf.

Access to the line requires, as is customary in the operation of the ESM, the signing of a financial facility agreement.

19.Vid. Letter from Executive Vice-President Dombrovskis and Commissioner Gentiloni to Eurogroup President Centeno clarifying how the Commission intends to carry out surveillance in the framework of the ESM’s pandemic crisis support (7 May 2020) https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/financial-assistance-eu/funding-mechanisms-and-facilities/european-stability-mechanism-esm_en). An analysis of the surveillance system established in the ESM in relation to the aforementioned Regulation 472/2012 can be consulted at CARRERA HERNÁNDEZ, F. J., “Soberanía estatal versus ‘solidaridad’: de la coordinación de políticas económicas a la progresiva instauración de mecanismos de asistencia financiera en la Unión europea”, Boletim de ciências económicas, Universidade de Coimbra, 2015 p. 63.

As a consequence, Delegated Regulation 877/2013 has been modified in relation to the content of the reports that the Member States must present: “When a Member State is subject to enhanced supervision solely as a consequence of having used Pandemic Crisis assistance from the European Stability Mechanism, the requirement to report throughout the year in accordance with Article 10 of Regulation (EU) 473 / 2013 will be related to the use of funds from the Pandemic Crisis aid to cover the direct and indirect costs of health care, treatment and prevention derived from the COVID-19 pandemic situation” (New article 2 bis of Delegated Regulation 877/2013, introduced by Commission Delegated Regulation (EU) 2020/1069 of June 19, 2020 that modifies Commission Delegated Regulation (EU) 877/2013, which completes Regulation (EU) 473/2013 of the European Parliament and of the Council on common provisions for the monitoring and evaluation of draft budgetary plans and for the correction of the excessive deficit of the euro area Member States, OJ 234 of 21July 2020).

20.It is important to remember, in the indicated sense of the insufficiency of the ESM to face the economic consequences of COVID-19, that this instrument has been subject to a review process for months, without being completed in practice until the date. The ESM Treaty reform proposals date back to 2017. Initially, the European Commission presented a proposal for a Regulation to turn the ESM into a sort of European Monetary Fund, integrating it into the structure of the EU (see Proposal for a Council Regulation establishing the European Monetary Fund, COM / 2017/827 / FINAL). However, this proposal was widely rejected and, after the Euro Summit, it was decided to continue with the reform process through intergovernmental channels, through a revision treaty of the TMEDE (Euro Summit. Declaration of December 14, 2018. https://www.consilium.europa.eu/media/37612/14-eurosummit-statement-es.pdf). Vid. VERHELST, S., Semantics matter: why the European Monetary Fund is a welcome idea, but a bad name, Egmont Royal Institute for International relations, 2018. CASANOVA, M. and MILLET, M., “El Fondo Monetario Europeo como sustituto del Fondo Monetario Internacional: constatación jurídica y causas”, in OLESTI, A. (Dir.), La profundización de la Unión Económica y Monetaria, Marcial Pons, 2019, p. 151.

The Treaty for the reform of the ESM Treaty was agreed by the Eurogroup on June 14, 2019 and is still pending signature and subsequent ratification by the Member States. Vid. DRAFT revised text of the treaty establishing the European Stability Mechanism as agreed by the Eurogroup on 14 June 2019 en https://www.consilium.europa.eu/media/39772/revised-esm-treaty-2.pdf.

The reform affects the activities of the ESM and its governance, the existing instrument of precautionary financial assistance (without implying a substantial transformation of the assistance provided) and, additionally, creates a new instrument that allows the ESM to act in support of the single resolution Fund, within the scope of the Banking Union (backstop facility), replacing the direct recapitalization instrument that had been introduced in 2014. Vid. a comparative study between the TMEDE and the proposed revision in DIAS, C. and ZOPPÈ, A, The proposed amendments to the Treaty establishing the European Stability Mechanism, Directorate General for internal politics, PE 634.357, 2020. Vid. also EVANGELISTI, A., “Le Mécanisme européen de stabilité et sa réforme”, Revue du marche commun et de l’Union Européenne, 2020, p. 349.

21.Council Regulation (EU) 2020/672 of 19 May 2020 on the establishment of a European instrument for temporary support to mitigate unemployment risks in an emergency (SURE) following the COVID-19 outbreak, OJ L 159 of 20 May 2020.

22.Arts. 11 y 12 Regulation 2020/672. In the case of Spain, the guarantees to the SURE were authorized in 2020 for an amount of 2,252 million euros (art. 4 Real Decreto Ley 19/2020 of 26 May, by which complementary measures are adopted in agrarian, scientific, economic, employment and social security and tax matters to alleviate the effects of COVID-19, Boletín Oficial del Estado 150 of 27 May 2020).

23.They are Belgium, Italy, Greece, Spain, Portugal, Czech Republic, Slovak Republic, Lithuania, Latvia, Poland, Slovenia, Croatia, Cyprus, Malta, Romania and Bulgaria. Later Ireland, Hungary and Estonia joined the list.

As regards Spain, which requested the aid on August 3, 2020, it may receive up to 21,300 million euros in ten tranches through a loan that will have a maximum maturity of 15 years; that is, more than a fifth of the total (Implementing Decision (EU) 2020/1347 of the Council of September 25, 2020, granting temporary support to the Kingdom of Spain, in accordance with Regulation (EU) 2020/672, to mitigate unemployment risks in the emergency following the COVID-19 pandemic, OJ L 314 of 29 September 2020).

24.The Regulation articulates the application procedure. It is the responsibility of the Council, on a proposal from the Commission and after consulting the Member State concerned, to approve an Implementation Decision by qualified majority granting financial assistance, a Decision in which all aspects of the loan will be established. The loan agreement between the Member State and the Commission will then be concluded. The agreement will be managed through the European System of Central Banks.

25.Vid. EU SURE Social Bond Framework, 7 October 2020 in https://ec.europa.eu/info/sites/info/files/about_the_european_commission/eu_budget/eu_sure_social_bond_framework.pdf.

26.Between October 2020 and May 2021 there have been seven bond emissions for an amount close to 90.000 million euros. Vid. https://ec.europa.eu/commission/presscorner/detail/es/ip_21_2592. See also Report on the European instrument for Temporary Support to mitigate Unemployment Risks in an Emergency (SURE) following the COVID-19 outbreak pursuant to Article 14 of Council Regulation (EU) 2020/672 SURE: Taking Stock After Six Months, COM (2021) 148 final, 22 march 2021.

27.Vid. Franco-German initiative for the European relaunch in the face of the Coronavirus crisis (18 May 2020). https://www.diplomatie.gouv.fr/IMG/pdf/d4fe338244d28de018c5bf0c538c83c337285d0e_cle0ec943.pdf.

This initiative had other contents aimed at strengthening strategic health sovereignty (“EU health strategy”), accelerating the ecological and numerical transition and increasing the resilience and economic and industrial sovereignty of the EU.

28.https://g8fip1kplyr33r3krz5b97d1-wpengine.netdna-ssl.com/wp-content/uploads/2020/05/Frugal-Four-Non-Paper.pdf.

29.Comunicación Europe´s moment: repair and prepare for the Next generation, COM/2020/456/FINAL, and working document SWD/2020/98 final. See also Proposal for a Council Regulation establishing an EU recovery instrument to support the recovery after the COVID-19 pandemic, COM/2020/441/FINAL and Communication from the Commission to the European Parliament, the European Council, the Council, to the EESC and the Committee of the Regions, The EU budget: engine of the recovery plan for Europe, COM/2020/442/FINAL/2 CORRIGENDUM.

The recovery instrument has been finally approved by Council Regulation (EU) 2020/2094 of December 14, 2020, OJ L 433 I of 22 December 2020.

30.Vid. Communication from the Commission to the European Parliament, the European Council, the Council, the Economic and Social Committee and the Committee of the Regions A modern budget for a Union that protects, empowers and ensures security. The multiannual financial framework for the period 2021-202, COM/2018/321/FINAL). See also Proposal for a Council Regulation establishing the multiannual financial framework for the period 2021-2027, COM/2018/322/FINAL/2 and Communication from the Commission to the European Parliament, the European Council and the Council The time to decide on the financial framework of the Union for the period 2021-2027, COM/2019/456/FINAL.

31.Vid. Amended proposal for a Council Regulation establishing the multiannual financial framework for the period 2021-2027, COM/2020/443/FINAL. The multiannual financial framework finally approved is set out in Council Regulation (EU, EURATOM) 2020/2093 of December 17, 2020, OJ L 433 I of 22 December 2020. Error correction OJ L 40 of 4 February 2021.

In relation to the Decision on own resources vid. Amended Proposal for a Council Decision on the system of own resources of the European Union, COM/2020/445/FINAL. The initial proposal is included in the Proposal for a Council Decision on the system of own resources of the European Union, COM/2018/325/FINAL. The act finally adopted is the Council Decision (EU/Euratom) 2020/2053 of December 14, 2020, OJ L 424 of 15 December 2020.

Member States complied with their internal procedures in relation to this Decision at the end of May 2021, definitively clearing the way for the launch of Next Generation. The Decision entered into force on June 1, 2021, although its application is rolled back to January 1 (vid. Boltín Oficial del Estado 139 of 11 June 2021).

32.Already in his proposal of July 10, the President of the European Council offered an agreement that implied including several concessions to the most reticent states, a proposal that was finally accepted, lowering the Commission’s proposal regarding the MFF for the seven-year period, from 1,1 billion euros up to 1,074 (discounting the cost of the recovery instrument and the triple safety net). 25.000 million euros were left on the road. For a first analysis see BAR CENDÓN, A., “El Consejo Europeo y el futuro de Europa”, Valencia Plaza, July 2020 (https://valenciaplaza.com/el-consejo-europeo-y–el-futuro-de-europa). See also CARRERA HERNÁNDEZ, F. J., “Del Mecanismo Europeo de Estabilidad (MEDE) al nuevo mecanismo de reconstrucción y resiliencia (MRR) ¿Ha sido necesaria una pandemia para reforzar la solidaridad financiera en la Unión Europea?”, Revista Española de Derecho Europeo, 75, 2020, p. 9 and SADELEER, N. De, “Le plan de relance Next Generation EU. Du changement de cap budgétaire à l’ingénieurerie institutionelle”, RAE, 2020/3, p. 607.

33.If the item initially handled amounted to 45.300 million euros for the seven years of the MFF, the tightening of the negotiations during the European Council helped them (not Germany) to get an additional 8.000 million euros in two phases: first, in an intermediate proposal of the President of the European Council included in a Non paper of July 18, they obtained an additional 100 million euros per year (which meant a total saving of 46.000 million euros in seven years for these States); second, in the final agreement reached at the European Council session held between July 17 and 21. In this way, the savings of these States during the 2021-2017 MFF will amount to 53.221 million euros (27.524 for Sweden, the Netherlands, Denmark and Austria). Five days of meeting (or four days and four nights) for an additional 8.000 million euros. This agreement has been embodied in art. 2.4 of the new Decision on own resources.

34.On the occasion of the European Council held in July 2020, the introduction in January 2021 of a tax on non-recycled plastic was agreed, delaying to 2023 other tax figures in the field of carbon emissions, emission rights trading regime and for the implementation of a digital tax, and in relation to other matters, such as a future tax on financial transactions. All this with the aim of being able to make early repayments of the loans contracted within the framework of the recovery instrument (Conclusions of the Extraordinary Meeting of the European Council, 17, 18, 19, 20 and 21 July 2020, p. 64).

The roadmap for the introduction of new own resources can be found in Annex II of the Interinstitutional Agreement on budgetary discipline, cooperation in budgetary matters and sound financial management, as well as on new own resources, in particular a roadmap for the introduction of new own resources, OJ L 433 I of 22 December 2020.

35.Vid. art. 2 Regulation 2020/2094.

36.The Commission proposed to endow this mechanism with 560,000 million (250.000 million euros for loans). The final agreement, therefore, globally increases the amount allocated to the mechanism, but far from mirages, what has really occurred is an increase in the items earmarked for loans, to the detriment of the amounts earmarked for aid under other programs. Vid. Proposal for a Regulation of the European Parliament and of the Council establishing a recovery and resilience mechanism, COM/2020/408/FINAL. The finally agreed text is Regulation (EU) 2021/241 of the European Parliament and of the Council of February 12, 2021 establishing the Recovery and Resilience Mechanism, OJ L 57 of 18 February 2021.

37.“Le bouleversement de l’Union économique et monétaire dans la crise pandémique”, RTDE, 2020, p. 926.

38.Council Regulation (EU) 407/2010 of May 11, 2010 establishing a European financial stabilization mechanism, OJ L 118 of 12 May 2010.

It is an instrument that expresses its application in uncontrollable and serious exceptional situations, materialized in the form of “severe economic or financial disturbance caused by exceptional events that it cannot control” (art. 1). It can be applied even if the medium-term financial support mechanism could be activated. However, it presents a substantial difference from the point of view of the beneficiaries since, in addition to its temporary nature, it is open in relation to all the EU States.

The Commission periodically reviews the need to maintain this mechanism. In its Communication on the EFSM, it considered that “the exceptional events and circumstances that justified the adoption of Regulation (EU) 407/2010 establishing a European financial stabilization mechanism still exist and that, therefore, the mechanism should be maintained” (Communication from the Commission to the Council and the Economic and Financial Committee on the European Financial Stabilization Mechanism, COM/2010/713/FINAL). Although it has not been used for several years, the mechanism remains in force.

39.The financial assistance provided for in this mechanism may consist of loans or lines of credit financed through loans contracted by the EU in the capital markets or with financial institutions (art. 2 of Regulation 407/2010). Its application requires the presentation of an economic adjustment program by the State under the conditions set out in the Regulation, and the negotiation of a Memorandum of Agreement, both documents that will be broadly included in the Decision by which the Council grants the loan in exchange for the conditionality detailed in said Memorandum. A loan agreement is also concluded in which detailed financial conditions are set.

However, it should not be forgotten that there is another instrument with similar characteristics that allows aid to be provided to non-Member States. This is the MFA, macro-financial assistance to non-EU countries, used until 2020 in relation to Georgia, Jordan, Moldova, Tunisia and Ukraine. On April 22, 2020, a 3.000 million euros MFA package was adopted in favor of ten enlargement and neighbourhood partners in the face of the COVID19 pandemic (Decision (EU) 2020/701 of the European Parliament and of the Council of 25 May 2020 on providing macro-financial assistance to enlargement and neighbourhood partners in the context of the COVID-19 pandemic, OJ L 165 of 27 May 2020).

40.Communication from the Commission to the European Parliament, the European Council, the Council and the European Central Bank, New budgetary instruments for a stable euro area within the framework of the Union, COM/2017/822/FINAL.

41.See an analysis of the main proposals launched prior to the start of the present pandemic in OLESTI RAYO, A., “¿Hacia un presupuesto específico de la Unión económica y monetaria?”, en La profundización de la Unión Económica y Monetaria, Marcial Pons, 2019. For this author, the proposals were modest in their approaches, but also a first step to be able to equip himself with instruments with sufficient entity to allow the application of anti-cyclical policies to face an economic crisis (p. 249).

42.Proposal for a Regulation of the European Parliament and of the Council on the establishment of a European Investment Stabilization Function, COM/2018/387/FINAL.

43.Proposal for a Regulation of the European Parliament and of the Council establishing the Reform Support Program, COM/2018/391/FINAL.

44.Proposal for a Regulation of the European Parliament and of the Council on a governance framework for the budgetary instrument for convergence and competitiveness for the euro area, COM/2019/354/FINAL.

45.Regulation (EU) 2021/240 of the European Parliament and of the Council of February 10, 2021 establishing a technical support instrument, OJ L 57 of 18 February 2021.

46.About the application of this instrument in 2021 vid. https://ec.europa.eu/info/tsi-2021-country-factsheets_en.

47.The CJEU excluded the application of paragraph 1 of art. 122 TFEU as an appropriate legal basis to create financial assistance instruments of these characteristics: “Since Article 122(1) TFEU does not constitute an appropriate legal basis for any financial assistance from the Union to Member States who are experiencing, or are threatened by, severe financing problems, the establishment of a stability mechanism such as the ESM does not encroach on the powers which that provision confers on the Council”. (FJ 116).

48.The compatibility with EU law of sovereign debt purchase programs in secondary markets launched by the European Central Bank has also been questioned, prompting new interventions by the CJEU. vid. Judgment Gauwailer C-62/14, ECLI:EU:C:2015:400 and Judgment Weiss, C-493/17, ECLI:EU:C:2018:1000. See CAPETA, T., “The role of Courts in economic governance in the European Union”, in CARRERA HERNÁNDEZ, F. J., ¿Hacia una nueva gobernanza económica de la Unión Europea?, Aranzadi, 2018, p. 155.

On the last part of this problem derived from the ruling of the German Constitutional Court of May 5, 2020 vid. GALETTA, D. U. and ZILLER, J., “‘¿Kkarlsruhe über alles?’ la insoportable pesadez del juez constitucional alemán (sobre la sentencia del «Zweiter Senat» del Tribunal Constitucional Federal alemán del 5 de mayo de 2020 relativa al programa PSPP del Banco Central Europeo”, REDE, 2020, p. 179.

49.Vid. https://elpais.com/espana/2020-07-01/los-juristas-del-consejo-de-la-ue-avalan-el-fondo-europeo-de-recuperacion.html.

50.GOLDMANN, M., “The case for Corona Bonds: A proposal by a Group of European Lawyers”, VerfBlog, 2020.

51.RUTHARDT, M., loc.cit., p. 345. Also, MARTUCCI, F.: “Ce n’est pas de la dette, c’est de l’investissement: des coronabonds aux obligations du plan de relance”, RAE, 2020/2, p. 306.

52.In relation to art. 122.2 TFEU, the General Court of the EU has recalled some passages of the Pringle case, adding that this provision allows the concession of a punctual assistance to a Member State under certain conditions. What this provision does not allow, according to the GC, is to create mechanisms that can serve to justify an abandonment of the debt, because of the general and permanent nature of such mechanism. (Judgment, Anagnostakis c. Comisión, T-450/12. The judgment was confirmed by the Court of Justice in cassation in Judgment Anagnostakis c. Comisión, C-589/15). But a debt issue by the EU does not imply an abandonment of the debt by the Member States, but the assumption of a different responsibility through the European Union.

53.Vid. Joint declaration of the European Parliament, the Council and the Commission on the budgetary control of new proposals based on Article 122 TFEU that may have a significant impact on the Union budget, OJ C 444 I of 22 December 2020.

54.“1. A Member State may request Union financial assistance under the Instrument (‘financial assistance’) where its actual and possibly also planned public expenditure has suddenly and severely increased as of 1 February 2020 due to national measures directly related to short-time work schemes and similar measures to address the socio-economic effects of the exceptional occurrence caused by the COVID-19 outbreak. 2. Beneficiary Member States shall use financial assistance primarily in support of their national short-time work schemes or similar measures, and, where applicable, in support of relevant health-related measures”.

55.Vid. also arts. 13 and 14 of the SURE Regulation.

56.“The recovery and resilience plans shall be consistent with the relevant country-specific challenges and priorities identified in the context of the European Semester, as well as those identified in the most recent Council recommendation on the economic policy of the euro area for Member States whose currency is the euro. The recovery and resilience plans shall also be consistent with the information included by the Member States in the National Reform Programmes under the European Semester, in their National Energy and Climate Plans and updates thereof under Regulation (EU) 2018/1999, in the territorial just transition plans under a Regulation of the European Parliament and of the Council establishing the Just Transition Fund (the ‘Just Transition Fund Regulation’), in the Youth Guarantee implementation plans and in the partnership agreements and operational programmes under the Union funds”. The Regulation itself clarifies that if the Member State is subject to a reinforced supervision procedure under Regulation 4072/2013 (instead of applying the ordinary procedures of the European Semester), the challenges and priorities derived from the application of such a procedure must be taken into account. The same occurs when a Member State is subject to Regulation 332/2002 (medium-term financial support mechanism for the balance of payments of the Member States).

57.Regulation of the European Parliament and of the Council of December 16, 2020, OJ L 433 of 22 December 2020.

58.Vid. Protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States, COM (2018) 324 final.

59.“État de Droit et finances de l’Union”, CDE, 2021-1, p. 8.

60.Vid. Resolution of the European Parliament of June 20, 2021, on the situation of the rule of law in the European Union and the application of Regulation (EU, Euratom) 2020/2092 on conditionality, P9_TA (2021)0287.

61.“For the purposes of this Regulation, breaches of the principles of the rule of law shall concern one or more of the following” (art. 4.2): “the proper functioning of the authorities implementing the Union budget, including loans and other instruments guaranteed by the Union budget, in particular in the context of public procurement or grant procedures; the proper functioning of the authorities carrying out financial control, monitoring and audit, and the proper functioning of effective and transparent financial management and accountability systems; the proper functioning of investigation and public prosecution services in relation to the investigation and prosecution of fraud, including tax fraud, corruption or other breaches of Union law relating to the implementation of the Union budget or to the protection of the financial interests of the Union; the effective judicial review by independent courts of actions or omissions by the authorities referred to in points (a), (b) and (c); the prevention and sanctioning of fraud, including tax fraud, corruption or other breaches of Union law relating to the implementation of the Union budget or to the protection of the financial interests of the Union, and the imposition of effective and dissuasive penalties on recipients by national courts or by administrative authorities; the recovery of funds unduly paid; effective and timely cooperation with OLAF and, subject to the participation of the Member State concerned, with EPPO in their investigations or prosecutions pursuant to the applicable Union acts in accordance with the principle of sincere cooperation; other situations or conduct of authorities that are relevant to the sound financial management of the Union budget or the protection of the financial interests of the Union”.

62.Suspension of payments, disbursements, reimbursements, reduction of economic advantages, prohibition of contracting new legal commitments, etc.