Fyodor Dostoyevsky and the primacy of EU law: overcoming the “eternal husband complex”

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by Alessandra Silveira, Editor

The Arts have always helped the human being to organize the knowledge and to provide a way to understand the meaning of things. The recent decision of the German Constitutional Court[i] on the European Central Bank (ECB) and its Public Sector Purchase Programme (PSPP) has served to create distrust in an atmosphere that is already very sensitive – and it has reminded me an academic episode that shows the role of the Arts in the process of learning. A few years ago, I carefully assessed a paper presented by a Master’s student entitled «Constitutionalism and the principle of primacy of EU law: overcoming the ‘eternal husband complex’». The unexpected title touched on “The Eternal Husband”, Fyodor Dostoyevsky’s literary work. Of course, this needs to be contextualized.

It is said that Russians under czarist rule used to refer in this way, “eternal husband”, to those who never dared to separate from their wives, regardless of the misfortune of the conjugality – from the mere lack of interest to adultery. Adapting the characters to the legal script of integration, the Master’s student explained me his objectives. He wanted to show that the constitutional system of checks and balances which guides the functioning of the EU legal order prevents EU Institutions from betraying the principles that establish and sustain the Member States constitutional paradigm. Therefore, the student argued, there are no credible reasons for resentments and misgivings – and it is urgently required to overcome the “eternal husband complex” of the national constitutionalism.

If we test this argument in light of the concept of European Union as a Union of law, we will conclude that the student may well be right. That legal principle affirms the idea that the Union is based on the rule of law, inasmuch as neither its Member States nor its Institutions can avoid a review of the question whether the measures adopted by them are in conformity with the EU basic constitutional charter – the Constitutive Treaties. Therefore, the principle of primacy of EU law does not qualify each and every EU legal act, but only those issued in accordance with the Constitutive Treaties – and the ECJ is solely responsible for assessing this validity. According to Article 19(1) TUE, the ECJ shall ensure that in the interpretation and application of the Treaties the law is observed, i. e., the ECJ is who decides on the scope and the exercise of the EU competences.
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EU finance rules – changes in the horizon

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by Joaquim Rocha, Professor at the Law School of University of Minho

The rules of the Stability and Growth Pact (SGP) for the European Union may yet again undergo some changes. The SGP — whose first version started being implemented in 1997 and since day one has been criticised for vagueness, complexity and juridical fragility — has gone through several amendments seeking to avoid infractions and deviations. Most recent revisions were related to excessive deficit situations into which a number of Member States have been dragged (including Portugal). Following political blockages and negotiation impasses, those revisions were taken to an “extra-Union” solution (conventional/classic international law) via the so-called Treaty on Stability, Coordination and Governance in the Economic and Monetary Union.

At this time, a solution within the EU law framework is pursued. The idea aims to simplify the rules and make them easily manageable by policymakers, public authorities, politicians in general, namely those accountable in the finances. The major line of action revolves around the introduction of a public expenditure’s control index. Simply put, the goal of the financial mechanisms would be transferred from cutting deficit in general to imposing an expenditure limit to the States, which could not override the growth rates of the economy in the mid-term.

It should be a virtuous solution as the fiscal focus has been kept on income, loans and taxes for too long, mistakenly discrediting and setting aside the essential cornerstone of finances: the expenditure.

According to the President of the Eurogroup, Jeroen Dijsselbloem, “We did not discuss how to change the Pact, just how to choose the indicators to assess the compliance with the Pact. (…) It is directly in the hands of finance ministers. It gives us more guidance in the process of designing the budget. It says in advance what you have to do, and you have the control in your hands. There was general agreement that we need an indicator that takes out all the cyclical elements and one-offs but preferably it should be more stable and not change all the time, and we could put more emphasis on indicators that we can actually directly influence as finance ministers“, via Reuters.

On the matter, the Vice President of the European Commission officially addressed after the informal ECOFIN:

Our intention is to focus more on what is really in the hands of the Ministers of Finance, namely the evolution of primary expenditure and new revenue measures. This does not mean that we will put aside the deficit and the debt objectives. It is rather about making it clear what governments are expected to do to achieve these objectives. There was I would say broad support to pursue the work in this direction.(…)  At the same time, we need to be realistic in our expectations, as many underlined that there is no perfect method of calculating the out-put gap, it will always be an approximation“, via European Commission Press Release.

The changes had been anticipated:

EU to consider single “expenditure rule” to cut through budget morass, via Reuters.

Picture credits: Money Scales  by Images Money.