Responding to the Economic Crisis: Public Law in a Post-Lisbon Age

Prof. Kenneth A. Armstrong

European institutions have reacted to the economic crisis by adopting a range of legal instruments intended to strengthen economic governance. With the adoption of the muscular ‘six pack’ of legislative measures, the talk in Brussels was of the return of the ‘Community Method’ as the Europeam Parliament – exercising its new powers of co-decision in the economic field – and the European Commission signalling their collective unwillingness to let ‘intergovernmentalism’ weaken the legislative bargain.

Subsequently, however, the initiative shifted to the leaders of the Member States as talk began of the need for treaty reform. Barely two years on from the completion of the tortuous process leading to the entry into force of the Lisbon Treaty, and despite the prophecy of the UK Foreign Secretary in October 2011 that treaty change was ‘years away’, an informal meeting of the European Council on 30 January 2012 endorsed two new treaty texts to establish a permanent European Stabilisation Mechanism (ESM Treaty) and to enhance coordination, stability and governance in economic and monetary union (CSG Treaty aka ‘Fiscal Compact’ Treaty).

My interest lies not in the content of these reforms but rather the processes associated with these initiatives. At its simplest, the argument is that the choice of legal instrument also entails choices as to the decision-making process to be used. Yet variations in process also entail variation in the mechanisms for democratic and constitutional approval: mechanisms which – like the UK’s recent European Union Act 2011 – have themselves evolved in response to past treaty revisions. In this way, the legal response to the economic crisis is a perfect illustration of the complex interweaving of EU and domestic public law. In this first of two contributions, the issues surrounding the adoption of the ESM Treaty are discussed. The CSG Treaty will be discussed in a subsequent piece.

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