Higgins may have to Consult Supreme Court on FU treaty

[ibis]

Yes, the proposed enforcement mechanisms are the major difference (rather than the actual obligations themselves). The 60% and 3% of the excess deficit procedure are there in black and white in the the treaties (though the 1/20 debt reduction rule is really only something decided by the council later, so I'd wonder if a country could really even be fined for breaching this). Went back and looked at some of the relevant EU treaty articles (particularly article 126 of the TFEU). What's notable is the limited teeth the EU has to actually enforce these excess deficit obligations. Ultimately, at most all it can do is fine the country involved (and maybe also deny support from the European Investment Bank). Interestingly, this article 126 specifically excludes the usual sanction the commission or another country has if they think a country is violating treaty obligations, i.e. appealing to the ECJ. Normally the country would then have to comply with the ECJ ruling. This route of appealing to the ECJ is ruled out by this article 126 in relation to the excess deficit rules.

So one of the things this fiscal compact seems to be aiming to achieve is to rewrite this EU treaty provision, e.g. in essence deleting TFEU article 126.10, which prohibits such appeals to the ECJ.

That does seem to be the case - I take it that the legal stance is that while Article 126 rules out taking another member state before the ECJ (by way of making Article 259 inapplicable) for the deficit procedure in the Article, this Treaty allows it to happen for the procedure in this Treaty. I'd consider that a definite improvement.

Plus article 7 of this compact seems to oblige a member state who is judged to be breaking these rules to accept whatever plan or recommendation the commission proposes (unless a qualified majority says otherwise). This almost sounds like putting a country into a kind of administration. This goes way beyond the kind of enforcement written into the current treaties. It's quite a stretch IMO to say we signed up for anything like this in earlier referenda. TFEU article 126.10 seems to say the ECJ has no role in enforcing excess deficit rules. This non-EU treaty now aims to hand it that role.

I think you're reading a lot too much into Article 7 there. If we take the existing deficit procedures in Article 126 as being the "procedural requirements of the Union Treaties" that Article 7 respects, then the implication of Article 7 is actually that instead of the Council determining the recommendations for amending the situation, as per 126.7:

7. Where the Council decides, in accordance with paragraph 6, that an excessive deficit exists, it shall adopt, without undue delay, on a recommendation from the Commission, recommendations addressed to the Member State concerned with a view to bringing that situation to an end within a given period. Subject to the provisions of paragraph 8, these recommendations shall not be made public.

the Council - that is, the member states - undertakes instead to support recommendations made by the Commission:

the Contracting Parties whose currency is the euro undertake to support the proposals or recommendations put forward by the European Commission...unless a qualified majority of them is of another view.

So this looks to me pretty much the same as the existing procedure, but with the Commission making the recommendations and the ECJ able to rule that a breach has indeed taken place, as opposed to both those functions being in the hands of the Council.

[Finbar10]

That does seem to be the case - I take it that the legal stance is that while Article 126 rules out taking another member state before the ECJ (by way of making Article 259 inapplicable) for the deficit procedure in the Article, this Treaty allows it to happen for the procedure in this Treaty. I'd consider that a definite improvement.



I think you're reading a lot too much into Article 7 there. If we take the existing deficit procedures in Article 126 as being the "procedural requirements of the Union Treaties" that Article 7 respects, then the implication of Article 7 is actually that instead of the Council determining the recommendations for amending the situation, as per 126.7:



the Council - that is, the member states - undertakes instead to support recommendations made by the Commission:



So this looks to me pretty much the same as the existing procedure, but with the Commission making the recommendations and the ECJ able to rule that a breach has indeed taken place, as opposed to both those functions being in the hands of the Council.

OK, was probably reading a bit much into article 7. I'm not against debt brakes per say. And if we're to remain within the Euro some kind of enforceable financial discipline is necessary. But I'm uneasy about the manner this treaty aims to give the ECJ powers to enforce these deficit rules (the 3% and 60% ones already in the treaty plus new ones: 1/20 debt reduction and the 0.5% structural deficit rules). The treaties explicitly say the violation of the excess deficit rules are not appealable to the ECJ. We now will perhaps have a non-EU international treaty saying they are. It would be one thing if the fiscal compact dealt with issues parallel to or separate from the EU treaties, and didn't involve making use of existing EU bodies. The writers of this treaty have a particular goal in mind and don't seem to mind bending and twisting and contorting EU law to the maximum bring about the particular result they want (just because the UK refuses to play ball and they can't go for conventional treaty change). I also wonder will the ECJ have issues enforcing, say, the 3% and 60% rules the actual EU treaties say it is not supposed to enforce. And I'd wonder what the German constitutional court would make of ECJ attempts to enforce German compliance in the unlikely event it breached these fiscal rules. I hope the ECJ doesn't play ball. It'd be more worrying to me if it actually does. One can endlessly argue about the rights and wrongs of the EU treaties. But at least one hopes the underlying law is solid. The ECJ playing along with this would IMO be a strong and worrying indicator that the law underlying the treaties is in reality quite malleable.