Hermann-Josef Blanke

The European Economic and Monetary Union – between vulnerability and reform

For more than two years, the global financial and economic crisis has put the European Union to one of its hardest tests. Until now, no end is foreseeable. Following the need to rescue banks and industrial companies, the rescue of indebted EU Member States is on the Union’s agenda. However, the European Treaties neither provide a constitutional framework nor suitable instruments to counteract sovereign default of Member States. In 2011 the Union has to decide on a fundamental reform of its economic constitution. At its core, this is about answering the question of how the European budgetary stability mechanisms and instruments need to be set up in order to ensure a rational design of the Economic and Monetary Union and enable effective budgetary coordination. This contribution will deal with the scope of the budgetary regulatory capacity of the ‘new’ instruments and will analyse their interaction.

The Economic Constitution of the European Union

An aphorism that is attributed to Jacques Delors goes: “Nobody falls in love with a single market.” This, as well as Lothar Spath’s observation on the subordination of the internal market within the primary interest in unifying Europeans by merging “cultural Europe” with “a free democratic system”, stems from a much-quoted saying by Jean Monnet.

The Protection of Fundamental Rights in Europe

Since the entry into force of the Treaty on European Union (TEU) on 1 December 2009 the people of Europe, the citizens of the European Union (EU), have taken a great leap forward in terms of their codified legal rights and liberties. For a long time they have been living mostly under judge-made law, be it as a result of the interpretation of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) by the European Court of Human Rights (ECtHR) in Strasbourg or of the creation or recognition of fundamental rights by the European Court of Justice (ECJ) in Luxembourg. While the Strasbourg Court grants legal protection as measured by human rights with universal character, the ECJ in its established case law guaranteed the protection of fundamental rights which the relevant parties sought within the scope of application of the Community Treaties. Now the Treaty of Lisbon recognises rights, freedoms and principles at Union level in a more comprehensive understanding – beyond the mere market-based context – setting them out in the Charter of Fundamental Rights of the European Union (EUCFR) and giving its provisions binding legal force (Art. 6.1 TEU).

Article 7 [The Principles of the Federal Coercion]

1. On a reasoned proposal 23–28 by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2.

Scope and Aim of a General Regulation on Access to Public Information

The right of access to information gives the citizens a tool to attract the attention of a requested public authority, and to link the public to a particular issue. Access to information, on the other hand, means that public authorities or private bodies carrying out governmental tasks pass on personal data or information that may affect important public interests, such as national security or the functioning of state institutions. In these cases, the transparency legislation restricts access to information. Secrecy of information, such as the defence strategies and national security, is a legitimate interest of the respective legal entity affected, which needs to be balanced with conflicting interests in access to official documents pursuant to the principle of proportionality. In the light of the objectives of national transparency laws the contribution aims to analyze at the constitutional and statutory level the interrelation between the core scope of freedom of information and the legal restrictions to which this right is subject.

Essentials of the Right of Access to Public Information: An Introduction

The first freedom of information law was enacted in Sweden back in 1766 as the “Freedom of the Press and the Right of Access to Public Records Act”. It sets an example even today. However, the “triumph” of the freedom of information did not take place until much later. Many western legal systems arose from the American Freedom of Information Act, which was signed into law by President L.B. Johnson in 1966. This Act obliges all administrative authorities to provide information to citizens and imposes any necessary limitations. In an exemplary manner, it standardizes the objective of administrative control to protect citizens from government interference with their fundamental rights. Over 100 countries around the world have meanwhile implemented some form of freedom of information legislation. The importance of the right of access to information as an aspect of transparency and a condition for the rule of law and democracy is now also becoming apparent in international treaties at a regional level. This article provides an overview on the crucial elements and the guiding legal principles of transparency legislation, also by tracing back the lines of development of national and international case-law.

The Democratic Deficit in the (Economic) Governance of the European Union

Common European legal thinking reveals itself especially in the existence of a common European constitutional law (Ius Publicum Europaeum Commune). It denotes the ensemble of individual constitutional principles that are – written or unwritten – a common heritage of the various national constitutional states. With regard to the principle of democracy, the Jubilee, when conducting a comparative law study, found there to be a “relatively heterogeneous picture” among national constitutions, even though one can find “core elements of a ‘common European democracy’”. According to Albrecht Weber, these include periodic elections of State institutions, legally ensured responsibility of public decision making with the possibility for parliamentary minorities to gain power as well as representative party democracy. Besides these elements, the equal participation of all governed in the exercise of public authority and constitutional freedoms is a mainstay of European “self-government”. The decision for parliamentary democracy in the European Union (Art. 10.1 TEU) is thus predetermined by the Member States’ forms of government and therefore belongs to the fundamental laws (Grundgesetze), to the “essentials” of the EU’s constitutional compound.

Catalonia and the Right to Self-Determination from the Perspective of International Law

In opposition to the process of integration at the European level, there is an increasing desire for independence within a number of European States such as in Catalonia’s case. Catalans invoke the right to self-determination and argue that they have a right to secession according to international law and that the Spanish Constitution of 1978 does not contradict this right. This essay analyzes the conflict between the principles of territorial integrity and self-determination in international law and explores the challenge which the secessionist movements pose for the European Union.

Article 38 [Role and Powers of the Political and Security Committee]

Without prejudice to Article 240 of the Treaty on the Functioning of the European Union, 6 a Political and Security Committee 1,2,4,5 shall monitor 13,14 the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council 7,9–12 at the request of the Council or of the High Representative of the Union for Foreign Affairs and Security Policy 8 or on its own initiative. 14 It shall also monitor the implementation of agreed policies, without prejudice to the powers of the High Representative. 11,15

Article 27 [Role and Powers of the High Representative for Foreign Affairs and Security Policy]

Throughout the years of European Political Cooperation (EPC) on foreign policy—from 1969 until 1993—the rotating Presidency was in charge of responding to external events, proposing common positions and initiatives to be agreed by the MS and acting as spokesman for any agreed policy in foreign capitals and in international organisations. The primary role of the Presidency was formalised in the SEA in 1986 and retained when the CFSP was established on a binding legal basis with the entry into force in 1993 of the TEU-Maastricht (Art. J.5 and J.8 TEU). Leadership by the Presidency reflected the intergovernmental character of the CFSP and the continuing identities of the MS in international fora.