Document Type

Article

Publication Date

2014

Publication Citation

2014 no. 4 Revista Romana de Drept European 105

Abstract

The decision in Case Pringle was primarily concerned with whether the European Stability Mechanism (TFEU) was compatible with various substantive provisions of the Treaty on the Functioning of the European Union, most notably the prohibition on bailouts in Article 125 TFEU. The judgment is nonetheless important for other reasons, including the legitimacy of the use of EU institutions outside the EU legal framework. It will be seen that the CJEU endorsed their use and reaffirmed earlier case law. These conclusions were analysed by Steve Peers in a helpful article in a previous issue of the European Constitutional Law Review, in which he was largely sympathetic to the test used by the CJEU to determine the legality of such involvement.

A different view will be taken in the present article, which is principally concerned with the EU political institutions. It will be argued that while the CJEU's decision may have been defensible on the facts, it raises several issues of constitutional principle which have not been explored. There is analysis of the case law, which provides the setting for the discussion thereafter. This begins with the foundations of the rule, connoting in this respect its legal provenance and the values that underpin it. The focus then shifts to procedural concerns, given that the current legal formulation accords a broad substantive discretionary power to EU institutions to participate in such agreements, without procedural obligations to condition how or whether the power should be exercised. The final section addresses substantive concerns with the legal status quo, in which it is argued that the CJ EU's conditions for the legality of such EU institutional involvement do not provide sufficient constraints on the discretion accorded to the institution that wishes to participate in such an agreement.

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