General Comment – foyer (or Cul-de-sac A Failure Not Worthy Being Called a Failure) [PART 2]

[This is the second part of a comment on the Portuguese elections aftermath, the author will soon provide the final part of this article – PART 3.]
by Sérgio Maia Tavares Marques, Jurist and 
student of the Master's degree in EU Law of UMinho




Previously, I have argued that the seeming failure of Portugal for not presenting the draft for the annual budget within the deadline fixed in the TSCG could not be considered a failure. I pointed that the reason for that fact (the delay/failure) was the political negotiation process in the country that it was not yet concluded at that time following a post electoral circumstance never seen before. Days have come and gone and on 26th of November a new Socialist + Leftist parties government took over. Mr. António Costa came to office in replacement of the right wing coalition led by PSD and the former PM, Mr. Pedro Passos Coelho, who had been originally nominated by the President. However, a motion of rejection was voted and approved by the left wing parties altogether and a new cabinet was formed and got in place.

As I underlined, my point was that it was not possible, nor advised for Portugal, to send the European Commission a budget draft when an upcoming administration (with its expenditure priorities) was still unknown. The country could not commit itself to figures that would only be mythical and/or misplaced. Plus and more importantly, I reasoned (in constitutional pluralist terms) that the appointment of a new government, as a direct result of the people´s will expression, can only be considered part of a national identity. In that sense, it falls within the scope of article 4/2 TEU. Therefore, the EU should encourage the demos and not persecute it. Nonetheless, Mr. Valdis Dombrovskis pressured Portugal with possible judicial actions and the situation was put on hold.

That is all past now. Mr. Mario Centeno is the Minister of Finance and he is in charge of preparing the budget.

The first signal sent by Mr. Costa cabinet was slightly worrying. Allegedly, some sources from inside the Socialist Party said that since it had 90 days to present it, according to the Constitution, the proposal was indeed going to be voted in March – after the next Presidential election – because the current and term-expiring President gave a speech at the State Cerimony of Inauguration/Swearing-In containing a sort of message about vetoing statues that would not match the “cycle of economic growth, job creation and external credibility” of Portugal. The interpretation was: the President might veto a Leftist budget if it jeopardises the European rules.

Quickly enough, Mr. Costa publicly stated that it was “not reasonable” to leave the budget to March. He did so in his very first European summit on 29th of November. Moreover, he compromised to present it “as soon as possible”.

Yet, on the 1st of December, Portuguese media headlined that the new cabinet found “everything to be done” financially as left by the former government. Supposedly, not even the administrative notes had been made, such as the wages preview of public servants.

Besides, a report by the Parliament´s Technical Unit of Budgetary Support – UTAO announced that just in November the former government had spent 30% of all resources for the year. The Report writes that it would take more financial improvements in order to meet the 3% deficit level for 2015.

With all that in mind, it came in good time Mr. Centeno´s declaration that week during the Eurogroup meeting, the last in this year. He said that the 2016 Draft Budget will be handed out in January. He emphasised the importance of the EU as a whole. He talked to Mr. Dombrovskis, to Mr. Pierre Moscovici (Commissioner for Economic and Financial Affairs) and to Ms. Margrethe Vestager (Competition). Apart from them, in his session with Mr. Jean-Claude Juncker, EC´s President, Mr. Centeno heard the Commision´s expectations. Not only a scenery, but a full picture. A real budget plan.

So now it´s time to ask, is the Portuguese failure on the deadline for the draft budget not worthy being called a failure… still?

Considering that by January, the government will have functioned for approximately 2 months and the merit of writing a proposal from scratch, one may tend to agree that the “failure” is not yet a failure. It is the needed schedule to gather data, consult with ministries, unions, the Central Bank, make calculations, confirm incomes, define expenditures, fill in, erase and fill in again spreadsheets… reach figures.

Nonetheless, we must never forget or set aside the polity aspect of the matter. It would only be wrong, inaccurate and legally questionable to punish Portugal. More precisely, Portugal demos represented in the political outcome after the election process. Was the country formally lawful? No, it was not. No doubts the deadline of TSCG was disrespected. [This is the proper cul-de-sac I referred to in the first post] It happens that there is more in Law than just that. In fact, the Union is based on the rule of law and it is generally spread that democratic values, as well as securing pluralism, in the member states polities are in the core of the EU. Its legal order exists to increase the exercise of public freedoms and fundamental rights by all citizens. Not to diminish or dismiss it.

I stand by my first solution on the infringement procedure [Part 1 of this post]. Surely, time is ticking. Reasonably, until January this failure is still not worthy being called a failure.

Picture credits: European Council President.

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