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Herrmann, Christoph --- "Differentiated integration in the field of economic and monetary policy and the use of ‘(semi-)extra’ Union legal instruments – the case for ‘inter se Treaty amendments’" [2017] ELECD 396; in De Witte, Bruno; Ott, Andrea; Vos, Ellen (eds), "Between Flexibility and Disintegration" (Edward Elgar Publishing, 2017) 237

Book Title: Between Flexibility and Disintegration

Editor(s): De Witte, Bruno; Ott, Andrea; Vos, Ellen

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783475889

Section: Chapter 9

Section Title: Differentiated integration in the field of economic and monetary policy and the use of ‘(semi-)extra’ Union legal instruments – the case for ‘inter se Treaty amendments’

Author(s): Herrmann, Christoph

Number of pages: 15

Abstract/Description:

The European integration process has gone through rough waters in recent times. Part of the strategy chosen to cope with the problems labelled ‘euro crisis’ or – more suitably – ‘European Sovereign debt crisis’ has been the recourse to legal instruments entirely (extra) or partly (semi-extra) outside the framework of the EU legal order: bilateral loans by Eurozone Member States to Greece; the establishment of the European Financial Stability Facility (EFSF) as a special purpose vehicle under Luxembourg private law, regulated by a framework agreement of the EFSF shareholders, which is governed by English private law; the establishment by the 17 euro area Member States of the ESM as an international financial institution under public international law; and the conclusion by 25 EU Member States of the Treaty on Stability, Coordination and Governance (TSCG) in the Economic and Monetary Union (EMU), also under public international law. Furthermore, the International Monetary Fund (IMF) has been greatly involved in the political decisions taken at Union level as well as in the respective Member States in distress. Where ‘true’ EU law instruments were used – namely with the six-pack and the two-pack – they only apply to euro area Member States and arguably stretch their legal basis considerably. Most recently, the Member States agreed to base the financing mechanism of the single resolution mechanism (SRM) on an intergovernmental agreement instead of Article 114 TFEU – as the rest of the SRM.