Читать книгу The economic policy of the european union in the context of the covid-19 crisis - Francisco Jesús Carrera Hernández - Страница 16

It should be noted that, at the time of its constitution in 1957, the EIB was not considered an institution. In fact, it was included in a title of the third part on Community Policy of the constitutive Treaty of the European Economic Community (TEEC). Regarding its nature, it was given legal personality. Likewise, it was determined that the Member States were considered to be members (art. 129 of the TEEC). Regarding its powers, it was given the authority to grant credits, appealing to the capital markets and its own resources, since it had to contribute to the balanced and fluid development of the common market in the interest of the Community. The loans were to finance projects for certain purposes and within certain limits, which we will see below9.

Meanwhile, the Maastricht treaty10 established the creation of the EIB and that it would act within the limits of the powers conferred on it by the Treaty and the Statute annexed to it (art. 4.b)11. This was included in the economic policy section. It was determined that if a Member State failed to comply with a decision taken under the treaty, the Council could decide to apply it or, where appropriate, the EIB could be recommended to reconsider its lending policy towards the Member State in question12. Also, the Member States, when formulating and implementing Community policies and actions and when developing the internal market, should take into account the objectives set out in article 130 A of the TEU and contribute to their attainment. And the Community would support them in carrying out their actions through the structural funds (European Agricultural Guidance and Guarantee Fund, “Guidance” section; European Social Fund; European Regional Development Fund), the European Investment Bank and the other existing financial instruments13.

As for the EIB, it should allocate a major part of its resources to economic promotion and social cohesion, and should review the capital needs to fulfill the purpose. The same Protocol on economic and social cohesion, attached to said treaty, reaffirmed that “their conviction that the EIB should continue to dedicate most of its resources to promoting economic and social cohesion and declare its willingness to reconsider the needs of capital of the EIB as soon as such capital is necessary for this purpose”.

In short, the Maastricht Treaty expanded its role within the EU and further developed the link it would have with the Member States, both in terms of economic and social cohesion, while maintaining its own legal personality.

In the current regulatory instrument, in accordance with article 308 of the TFEU, it is maintained, as in its constitution, that the EIB has legal personality and that its members are the EU States. Regarding its general framework, the same provision establishes that it is governed by the Statutes contained in a Protocol (No. 5) on the Statutes of the EIB (hereinafter Bank Protocol or Protocol) (art. 308 of the TFEU). Said Protocol –signed by the States of the Union– establishes the rules of constitution, functions and activities in accordance with the provisions of the Treaties. It also establishes the capital at its disposal. Likewise, in terms of organization, it determines the three bodies by which it is administered and directed: a Board of Governors, a Board of Directors and a Management Committee. Finally, it includes the principles that govern its actions, as well as the rules that regulate its operation in certain cases. It is developed in section I.3 Internal organization.

To amend its statutes, it is necessary to do it through the EU at the request of the EIB, and after consulting the EP and the Commission, or also on a proposal from the European Commission, after consulting the EP and the EIB. In either case, the Council shall approve the amendment unanimously, in accordance with a special legislative procedure (art. 308 of the TFEU).

Regarding its nature, the CJEU has considered it to be an institution of an ambivalent nature. In this sense, it is noted that said institution has declared that the EIB is an institution characterized by its independence in terms of the management of its businesses in the field of financial operations and by its close link with the EU as regards its objectives14. Given the autonomous nature of the institution towards the EU, it is considered that “it acts as a financial company: it is guided by the efficiency of its operations, it seeks the confidence of international financial markets and the obtaining of resources through loans, mainly through loans, through the issuance of bonds in the international capital markets, in which it enjoys maximum solvency. The EIB offers these capitals obtained through loans to place them in loans and guarantees that stimulate investments in the EU and also outside the territory of the Member States (...) it does not pursue a profit-making purpose, but it is not a charity or social solidarity institution15”.

Meanwhile, there is no consensus when considering the nature of the EIB. Some maintain that “the European Treaties did not classify it under any type of category and, therefore, the EIB should not be seen on the contrary as an ‘Institution’, an ‘agency’ of the EU or an ‘advisory body’ of the European Union”. Therefore, the EIB should be classified in the remaining category of EU bodies as a “body” that is an integral part of the institutional structure of the EU16.

In the public information offered by the EU, the EIB is recognized within those other institutions and institutional bodies that perform specialized functions; in this case, the EIB finances EU investment projects and helps small businesses through the European Investment Fund17.

In conclusion, regarding the nature of the EIB, whether considered as an institution, as “another type of institution”, or as an institutional body –among many other definitions– it is clear that it has specific functions and purposes, which is to finance projects, investments and support the business and economic development of EU countries. It was pointed out that “it is organized as an autonomous business structure whose shareholders are the EU Member States, and is governed by a specific Statute established in Protocol No. 5 of the Treaties. And in fact, the ECJ has concluded that the EIB’s status as a legal financial institution that to some extent can function ‘independently’ from the rest of the EU order, since it can act with total independence in financial markets, like any other bank18”. It is important for its operation to be independent from the other European institutions, since it operates as a financial institution where credits are assigned and if there is no independence from the rest of the institutions, I consider that the action could be conditioned. In addition to this, it is necessary to highlight that the EIB also has internal control mechanisms to monitor its effective operation and transparency.