October 19
2021
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EMU Integration and Member States’ Constitutions

Stefan Griller and Elisabeth Lentsch (Eds.)

review by

Luca Lionello

The developments of the Economic and Monetary Union (EMU) through the multiple crises that occurred over the last decade have put the relationship between the constitutional order of the European Union and those of the Member States under considerable pressure. Stefan Griller and Elisabeth Lentsch have taken on the challenge of editing an impressive body of work, which aims to analyse the institutional consequences of fiscal and economic integration in the EU, including some of the possible reform scenarios outlined by the European Commission before the outbreak of the COVID-19 pandemic. The result is a collective study by more than 30 contributors, which explains the main implications posed by the ongoing transformation of the EMU to constitutional law.

The book is composed of 29 chapters. Of note are the first two chapters. In the first, Griller provides an overview of the most important legal background to  the process of economic and fiscal integration. Over the  years, the latter has developed due to certain important legislative innovations (both EU laws and intergovernmental agreements), as well as the case law of the Court of Justice of the European Union, which has granted EU institutions a significant margin of autonomy, also protected by the principle of primacy of EU law. At the same time, the progressive erosion of core national      sovereignty triggered some reactions concerning the constitutional orders of the Member States, and constitutional actors have started posing conditions or even limits to the process of integration in the EMU. In the second chapter, Lentsch describes the current functioning of the EMU in the light of the most important changes that happened during the sovereign debt crisis and outlines the proposal of reforms of the EMU put forward by the European Commission in December 2017 (including the incorporation of intergovernmental agreements in EU law, enhancement of structural convergence, establishment of new stabilisation tools and development of a Eurozone fiscal capacity).

The core focus of the book is the reports on the national constitutional foundations of EMU membership. Some of the most prominent experts of EU and national constitutional law have participated in this important study. Each chapter contains a country report, which addresses a number of relevant issues: the main characteristics of the national constitutional system (including the judiciary) and constitutional culture; the constitutional foundations of the EMU membership and closely related instruments; the constitutional obstacles to EMU-related measures (with a focus in particular on crisis management measures, constitutional amendments, integration of EMU related instrument in national law, constitutional law scrutiny of EMU reforms scenarios); constitutional rules and/or practice on implementing EMU-related law, including the role of the parliamentary body; the resulting relationship between EMU-related law and national law. All Member States have their own country reports except for Belgium. In an interesting chapter on the UK, Paul Craig explains the reasons, legal foundation and consequences of the British opt-out.

The book is very well structured with each chapter following a standard simple-to-follow format, which makes it relatively easy to identify the main features of the relationship between national legal orders and the EMU for each Member State. Furthermore, it is possible to skip through the pages while looking for similarities and differences between the attitudes of Member States towards the process of economic and fiscal integration. This structure allows the book to represent the multilevel complexity of the ongoing process of integration in the EMU.

First of all, the legal relationship between the EU and national legal orders has become more and more tense over the years, especially due to the possible clash between the principle of primacy of EU law and the preservation of national sovereignty in core policy areas. It is true that some common trends have been emerging in the attitude of national courts towards the process of economic and fiscal integration, also thanks to the influence exercised by some jurisdictions of highest-ranking and last resort, such as the German Federal Constitutional Court (Bundesverfassungsgericht). Two main instruments have been identified to contain the principle of primacy of EU law also on EMU related issues, notably the ultra vires doctrine and constitutional identity review of EU law.  At the same time, reading the book, such common trends still seem rather nuanced due to the different historical and political background of each national legal order. For the same reasons, every country presents different types of obstacles towards the further process of integration.

Furthermore, the relationship between the EMU and national constitutions has been shaped through the participation of several actors in the Member State. While courts do exercise a pivotal role, as they are the guardians of domestic legal orders, the book explains how national governments and parliaments also have a specific role to play, for example implementing EMU-related laws and complying with the rules of economic governance. In some Member States, such as Ireland, Denmark and Sweden, the attitude towards the EMU has been also determined by the direct participation of       national populations, notably through referenda.

Finally, even if the book focuses on the legal framework of the EMU and its possible transformation, it also takes into consideration the political dimension of the matter, as well as its many economic consequences. In this way, the legal research is enriched by multidisciplinary analysis, which helps better understand the many challenges that sovereign countries will face when they decide to share the same currency.

Unfortunately, the work has not considered the sudden acceleration in the process of economic and fiscal integration since the outbreak of the COVID-19 pandemic. However, this is what may happen when you deal with extremely topical legal matters. The book does not for example mention the important innovations brought about by Next Generation EU (NGEU) – the € 750 billion stimulus package financed by the EU budget – and only briefly considers the PSPP judgment of the German Federal Constitutional Court, the consequences of which are going to be wide and complex (also due to probable emulation by other constitutional courts and the ongoing infringement procedure commenced by the Commission). This inconvenience does not diminish the importance of the book: the large amount of information and analysis developed therein will help understand the ongoing constitutional transformation determined by the establishment of NGEU, as well as new opportunities arising for the process of fiscal and economic integration in the EU.

 

Luca Lionello is a Researcher at the Catholic University of Milan.

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