Alicia Hinarejos

The Euro area crisis in constitutional perspective

Introduction 1. An Asymmetric Economic and Monetary Union 2. The Euro Area Crisis 3. The Responses to the Crisis 4. The Evolution of EMU: Challenges and Underlying Principles 5. The Mechanics of EMU Integration and Questions of Competence 6. Intergovernmentalism 7. The Shapes and Problems of Multi-speed integration 8. The Courts and the Crisis 9. Constitutional Obstacles to Further Integration 10. The Future of EMU: Models of Integration Conclusion

The Euro Area Crisis and Constitutional Limits to Fiscal Integration

Against the backdrop of the current euro area crisis and the imbalance at the heart of the Economic and Monetary Union, this paper will explore the current state of fiscal integration, as well as its likely future and limits. It will do so by, first, creating a ‘map to fiscal integration’ that takes into account the degree of legalisation of state cooperation, as well as the subject-matter of particular fiscal rules. The three measures or packs of measures adopted by the euro countries since the start of the crisis will be discussed and located within this map to fiscal integration. The paper will show that a distinction can be drawn between (1) what will be referred to here as ‘balance rules,’ or rules that concern budgetary discipline and balance, and (2) substantive rules or measures that concern the allocation of resources within a state and thus have a distributive or redistributive effect. Once the state of play of fiscal integration is clear, the paper will turn to the shape of future integration in this area, arguing that further fiscal integration — or legal integration that goes beyond balance rules and crosses into the (re)distributive area — is severely limited by the current Treaties and that, moreover, even a hypothetical Treaty amendment with a view to creating a full EU fiscal policy of this kind would run into significant theoretical problems, both as a matter of EU law and of national constitutional law.

The Lisbon Treaty Versus Standing Still: A View from the Third Pillar

Across national borders, voices against the Lisbon Treaty have argued that ratification of this document would bring about undesirable changes in the nature of the European Union and the way it operates. These voices believe that there is nothing wrong with the Union at present (‘if it ain’t broke, don’t fix it’) or that, although the Union is in fact broke, it cannot be fixed with the Lisbon Treaty. Either way, the result is a belief that not doing anything is preferable to ratifying the Lisbon Treaty. This paper shows that, contrary to such belief, it is precisely not doing anything that will allow the most undesirable changes to happen in what is arguably the most sensitive and fast-developing area of the EU, the third pillar. The paper will argue that the way in which third pillar law is being considered and applied by national courts varies and that these discrepancies epitomize an evolution that is likely to culminate in third pillar law being treated in the same way as first pillar law, and more specifically allowing it to have primacy over national law as a matter of EU law. This may come as a result of changes in national judicial attitudes, ECJ case-law or a combination of both. Since, in the absence of the Lisbon Treaty, this evolution would not come paired with other necessary changes, it would be liable to cause a grave imbalance in the constitutional structure of the Union and would lead to gaps in judicial protection and, possibly, a re-ignition of the conflict between national constitutional courts and the European Court of Justice (ECJ). If, on the other hand, the change in the nature of third pillar law from ‘weak’ public international law to ‘strong’ EC law takes place as a result of an all-embracing treaty overhaul (as it would be the case were the Lisbon Treaty to be ratified), it will come together with an extension of the system of judicial protection that will ensure an unproblematic transition.

A Missed Opportunity: The Fundamental Rights Agency and the Euro Area Crisis

This paper focuses on the role played by the Agency for Fundamental Rights in the wake of the euro area crisis. The Agency was created as part of a wider trend towards a broader, more pro‐active strategy for the protection of fundamental rights that includes administrative and political rights promotion as a complement to judicial enforcement. In the context of the euro crisis, however, the Agency has not been able to fulfil this role. This paper will analyze the reasons for this missed opportunity, as well as its consequences. It will argue that the sidelining of the Agency in this area is due to the confluence of two factors: on the one hand, the Agencys lack of discretion in setting its own agenda; and, on the other, the predominance of the executive, and resulting resurgence of intergovernmentalism, that have been a feature of post‐crisis developments. Ultimately, this paper argues that the sidelining of the Agency in this context is an unfortunate result, given the magnitude of the political debate in this area and the valuable role that the Agency might have played or could still play in informing it.

Free Movement, Federalism and Institutional Choice: A Canada-EU Comparison

Although very different in many respects, the EU and Canada nevertheless confront common problems in certain areas. One such common problem is how to manage inter-state regulatory diversity within a federal (or federal-like), multinational system. This paper compares the different ways in which the EU and Canada have chosen to address the problem of national barriers to trade within their internal markets, and the consequences of these choices. It is somewhat counter-intuitive for EU lawyers that a full-fledged state may have an internal market that is less integrated than that of the EU; and yet that is the case in Canada. The comparison is illuminating as to the different possible approaches of federal polities to the problem of state regulatory choices and barriers to trade, the paramount importance of institutional choice, and the significance of historical and political circumstances.

Social Legitimacy and the Court of Justice of the EU: Some Reflections on the Role of the Advocate General

The Court of Justice of the European Union (CJEU, Court of Justice or Court, for short) operates in circumstances that are similar to those of a national constitutional court; at the same time, some significant features set it apart and make it more difficult for the Court of Justice to command the institutional loyalty or public support that national constitutional courts seem to enjoy in Europe. This paper will, first, offer a brief overview of how and why the Court acquired a markedly political, and problematic, role within the judicial and legal system of the Union (Section II). Section III will then examine the different concepts of legitimacy that may be applied to courts and their decisions, focusing more specifically on the social dimension of legitimacy. This paper will argue that the fact that the Court of Justice has to operate in a transnational context leads to a shortfall in its social legitimacy, at least when compared to national constitutional courts in Europe. Finally, Section IV will focus on the figure of the Advocate General as a mechanism that may lend some extra social legitimacy to the Court and its decisions — obviously without solving the problem completely — and that, more generally, may foster dialogue, debate and deliberative democracy in the Union.