Pringle and Use of EU Institutions Outside the EU Legal Framework: Foundations, Procedure and Substance
9 EuConst 263 (2013)
30 Pages Posted: 20 Sep 2013
Date Written: September 9, 2013
The decision in Pringle was primarily concerned with whether the European Stability Mechanism was compatible with various substantive provisions of the Treaty, most notably the prohibition on bailouts in Article 125 TFEU. The judgement 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 which he was largely sympathetic to the test used by the CJEU to determine the legality of such involvement. I take a different view 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 in Pringle, 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 CJEU’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.
Keywords: EU institutions, foundations, procedure, substance, enhanced cooperation, differentiated integration
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