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The ESM and the European Court's Predicament in Pringle

Published online by Cambridge University Press:  06 March 2019

Vestert Borger

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On 27 November 2012, the European Court of Justice (“the Court”) rendered its judgment in the Pringle case. Sitting as a plenum, which is extremely rare, the Court did what had been expected. Just as the Bundesverfassungsgericht (German Federal Constitutional Court or BVerfG) had done two months earlier, it gave the go-ahead for the euro area's permanent emergency instrument, the European Stability Mechanism (“ESM”). With this decision, the possibility of granting assistance to financially distressed euro area Member States has now been secured for the future.

Type
Special Section: The ESM Before the Courts
Information
German Law Journal , Volume 14 , Issue 1: Special section - The ESM Before the Courts , 01 January 2013 , pp. 113 - 139
Copyright
Copyright © 2013 by German Law Journal GbR 

References

1 Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=130381&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=274536.Google Scholar

2 Bundesverfassungsgericht [BVerfG - Federal Constitutional Court], Case No. 2 BvR 1390/12, Sept. 12, 2012, 2012 Neue Juristische Wochenschrift (NJW) 3145 (Ger.).Google Scholar

3 Next to the ESM Treaty, Union institutions are also used in the context of the recently concluded Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. See Paul Craig, The Stability, Coordination and Governance Treaty: Principles, Politics and Pragmatism, 37 Eur. L. Rev. 231 (2012). But see Vestert Borger & Armin Cuyvers, Het Verdrag inzake Stabiliteit, Coördinatie en Bestuur in de Economische en Monetaire Unie: de juridische en institutionele complexiteit van de eurocrisis, 60 Tijdschrift voor Europees en Economisch Recht 370 (2012) (providing a different view).Google Scholar

4 The GLF is founded on two agreements concluded on 8 May 2010, which are available at http://www.minfin.gr/content-api/f/binaryChannel/minfin/datastore/30/2d/05/302d058d2ca156bc35b0e268f9446a71c92782b9/application/pdf/sn_kyrwtikoimf_2010_06_04_A.pdf. The first concerns an inter-creditor agreement among the euro area lender Member States, containing the modalities of their involvement in the loan facility. The second forms a loan facility agreement which sets out the provisions governing the pooled bilateral loans.Google Scholar

5 Council Regulation 407/2010, 2010 O.J. (L 118) 1 (EU) [hereinafter Regulation 407/2010].Google Scholar

6 The basic arrangements concerning the EFSF are laid down in a framework agreement between the euro area Member States, in their capacity as shareholders, and the EFSF. See European Financial Stability Facility, EFSF Framework Agreement, available at http://www.efsf.europa.eu/about/legal-documents/index.htm [hereinafter EFSF Framework Agreement].Google Scholar

7 The assistance of up to €100 billion earmarked for the Spanish banking sector—granted by the Eurogroup on 20 July 2012—was first disbursed by the EFSF but was transferred to the ESM on 29 November 2012. In addition to these existing assistance operations, Cyprus lodged an official request for assistance on 25 June 2012.Google Scholar

8 European Council Conclusions, No. 25/1 REV 1 of 28–29 Oct. 2010, para. 1.Google Scholar

9 European Council Conclusions, No. 30/1 REV 1 of 16–17 Dec. 2010, para. 2.Google Scholar

10 Id. at annex I.Google Scholar

11 European Parliament Resolution of 23 March 2011 on the Draft European Council Decision Amending Article 136 of the Treaty on the Functioning of the European Union with Regard to a Stability Mechanism for Member States Whose Currency is the Euro, 2012 O.J. (C 247 E) 22; Commission Opinion on the Draft European Council Decision Amending Article 136 of the Treaty on the Functioning of the European Union with Regard to a Stability Mechanism for Member States Whose Currency is the Euro, COM (2011) 70 final (Feb. 15, 2011); Opinion of the European Central Bank on a Draft European Council Decision Amending Article 136 of the Treaty on the Functioning of the European Union with Regard to a Stability Mechanism for Member States Whose Currency Is the Euro, 2011 O.J. (C 140) 8.Google Scholar

12 European Council Decision 2011/199, 2011 O.J. (L 91) 1 [hereinafter Decision 2011/199].Google Scholar

13 For information about the ratification of Decision 2011/199, see Agreements Database, Council of the European Union, http://www.consilium.europa.eu/policies/agreements?lang=en.Google Scholar

14 Decision 2011/199 art. 2.Google Scholar

15 Treaty Establishing the European Stability Mechanism (ESM), Feb. 2, 2012 [hereinafter ESM Treaty].Google Scholar

16 Euro Area Member States, Agreed Lines of Communication by Euro Area Member States, Jan. 30, 2012, para. 2, available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/127633.pdf.Google Scholar

17 ESM Treaty, supra note 15, at annex I–II (providing overviews of the contribution key of the ESM and of the ESM Members’ respective subscriptions to the authorized capital stock).Google Scholar

18 Bundesverfassungsgericht [BVerfG—Federal Constitutional Court], Case No. 2 BvR 1390/12, Sept. 12, 2012, 2012 Neue Juristische Wochenschrift (NJW) 3145 (Ger.). The BVerfG did rule, however, that ratification of the ESM would only be in compliance with the German constitution if, at the same time, two things would be ensured under international law. First, without the consent of the German representative, the amount of all payment obligations of Germany under the ESM Treaty cannot exceed its maximum subscription to the authorised capital stock. In addition, the provisions in the ESM Treaty on the inviolability of documents, professional secrecy and immunities of persons cannot stand in the way of the comprehensive information of the Bundestag and Bundesrat. Euro area Member States have complied with these requirements by adopting an interpretative declaration on the ESM Treaty.Google Scholar

19 See also Statement, Jean-Claude Juncker, President, Eurogroup (Sept. 27, 2012), available at http://www.eurozone.europa.eu/documents/statement-by-the-president-of-the-eurogroup-jean-claude-juncker-on-the-entry-into-force-of-the-esm-treaty.Google Scholar

20 Press Release, European Stability Mechanism (ESM) is inaugurated (Oct. 8, 2012), available at http://www.esm.europa.eu/press/releases/20121008_esm-is-inaugurated.htm. The Board of Governors is the ESM's highest decision-making body. The Governors are members of the governments of the ESM Members who are responsible for finance. See ESM Treaty, supra note 15, at art. 5.Google Scholar

21 ESM Treaty, supra note 15, at art. 8(1).Google Scholar

22 Id. at art. 8(2).Google Scholar

23 Id. at recital 6.Google Scholar

24 See id. at arts. 14–18 (providing an overview of the assistance instruments). The list of financial assistance instruments may be reviewed and changed by the Board of Governors. See id. at art. 19.Google Scholar

25 Id. at arts. 3, 12(1), 13(3).Google Scholar

26 On 13 December 2011, a six-pack of EU legislative measures, inter alia amending the SGP and introducing a mechanism to prevent and correct macro-economic imbalances, entered into force. These measures cannot, however, completely undo the asymmetry between economic and monetary governance as this stems from primary Treaty law. See Council Regulation (EU) 1173/2011, 2011 O.J. (L 306) 1; Council Regulation (EU) 1174/2011, 2011 O.J. (L 306) 8; Council Regulation (EU) 1175/2011, 2011 O.J. (L 306) 12; Council Regulation (EU) 1176/2011, 2011 O.J. (L 306) 25; Council Regulation (EU) 1177/2011, 2011 O.J. (L 306) 33; Council Directive (EU) 2011/85, 2011 O.J. (L 306) 41.Google Scholar

27 Consolidated Version of the Treaty on the Functioning of the European Union art. 127(2), 2010 O.J. (C 83) 47 [hereinafter TFEU]; Protocol (No. 4) on the Statute of the European System of Central Banks and of the European Central Bank art. 3(1), 2010 O.J. (C 83) 230 [hereinafter Statute of the ESCB and of the ECB]. Member States that have not (yet) adopted the euro are not subject to TFEU art 127(2). See also infra note 39. Only the ECB and the national central banks of euro area Member States, which constitute the Eurosystem, conduct the monetary policy of the Union. See TFEU, at art. 282(1).Google Scholar

28 The multilateral surveillance procedure in TFEU art. 121 is further worked out in the preventive part of the Stability and Growth Pact (SGP). See Council Regulation (EC) 1466/97, 1997 O.J. (L 209) 1 (last amended by Council Regulation (EU) 1175/2011, 2011 O.J. (L 306) 11) [hereinafter Regulation 1466/97]; see also Dermot Hodson & Imelda Maher, The Open Method as a New Mode of Governance: The Case of Soft Economic Policy Coordination, 39 J. Common Mkt. Studs. 719–46 (2001); Fabian Amtenbrink & Jakob de Haan, Fiscal Policy Discipline Versus Flexibility, 40 Common Mkt. L. Rev. 1075–106 (2003).Google Scholar

29 Consolidated Version of the Treaty on European Union art. 3(3), 2010 O.J. (C 83) 13 [hereinafter TEU]; TFEU, supra note 27, at arts. 119(2), 127(1), 282(2); Statute of the ESCB and of the ECB, supra note 27, at art. 2. The Treaties do not define what is to be understood by price stability. However, the ECB has defined it as a rate of inflation below, but close, to 2% over the medium term. See European Central Bank, The Monetary Policy of the ECB 64 (2011).Google Scholar

30 Council Regulation (EC) 1467/97, 1997 O.J. (L 209) 6 (last amended by Council Regulation (EU) 1177/2011, 2011 O.J. (L 306) 33).Google Scholar

31 TFEU, supra note 27, at art. 126(11).Google Scholar

32 Smits, René, The European Central Bank—Institutional Aspects 77–78 (1997).Google Scholar

33 TFEU, supra note 27, at art. 125(1).Google Scholar

34 Id. at art. 122(2).Google Scholar

35 Pipkorn, Jörn, Legal Arrangements in the Treaty of Maastricht for the Effectiveness of the Economic and Monetary Union, 31 Common Mkt. L. Rev. 263, 273–74 (1994); Ernest Gnan, Artikel 104b, in Kommentar zum EU/EG-Vertrag 96–98 (Hans von der Groeben et al. eds., 1999); Jean-Victor Louis, Guest Editorial: The No-Bailout Clause and Rescue Packages, 47 Common Mkt. L. Rev. 971, 982–83 (2010); Alberto de Gregorio Merino, Legal Developments in the Economic and Monetary Union During the Debt Crisis: The Mechanisms of Financial Assistance, 49 Common Mkt. L. Rev. 1613, 1632–35 (2012).Google Scholar

36 See Häde, Ulrich, Haushaltdiziplin und Solidarität im Zeichen der Finanzkrise, 20 Europäische Zeitschrift für Wirtschaftsrecht 399, 402–03 (2009).Google Scholar

37 Pipkorn, , supra note 35, at 273; Doris Hattenberger, Artikel 100, in EU—Kommentar 1186 (Jürgen Schwarze et al. eds., 1999); Louis, supra note 35, at 982.Google Scholar

38 Yet not exceptions in the literal sense of the word. Neither TFEU art. 143(2) nor TFEU art. 122(2) are formulated as exceptions similar to those relating to the free movement provisions—TFEU arts. 45(3), 52, 65—or internal or external security—TFEU art. 346–47.Google Scholar

39 The balance of payments assistance clause in TFEU art. 143(2) only applies to Member States that have not yet adopted the euro. The legal status of these states, called “Member States with a derogation,” is regulated in TFEU arts. 139–44. Special rules apply to the United Kingdom and Denmark. See Protocol No. 15 on Certain Provisions Relating to the United Kingdom of Great Britain and Northern Ireland, 2010 O.J. (C 83) 284; Protocol No. 16 on Certain Provisions Relating to Denmark, 2010 O.J. (C 83) 287. These latter two states can benefit from balance of payments assistance on the basis of TFEU art. 143(2) as well.Google Scholar

40 Häde, supra note 36, at 403.Google Scholar

41 The questions are presented in the way they have been reformulated by the Court.Google Scholar

42 Opinion of Advocate Gen. Kokott, Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____.Google Scholar

43 Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____, at para. 37.Google Scholar

44 Id. at para. 43.Google Scholar

45 Id. at para. 70Google Scholar

46 Id. at paras. 55–57.Google Scholar

47 Id. at paras. 58–60.Google Scholar

48 Id. at paras. 64–65.Google Scholar

49 Id. at paras. 68–69.Google Scholar

50 Id. at paras. 72–75.Google Scholar

51 Id. at para. 110.Google Scholar

52 See ESM Treaty, supra note 15, at arts. 3, 12(1), 13(3).Google Scholar

53 See Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____, at para. 111; see also id. at art. 13(4).Google Scholar

54 Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____, at para. 113.Google Scholar

55 Id. at para. 116.Google Scholar

56 Id. at paras. 120–22.Google Scholar

57 Id. at para. 128.Google Scholar

58 Id. at paras. 130–32.Google Scholar

59 Id. at para. 133.Google Scholar

60 Id. at paras. 134–35.Google Scholar

61 Id. at para. 136.Google Scholar

62 Id. at para. 137.Google Scholar

63 Id. at paras. 138–41.Google Scholar

64 Id. at paras. 142–43.Google Scholar

65 The issue of capital calls is regulated in ESM Treaty arts. 9(2), 9(3).Google Scholar

66 Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____, at paras. 144–46.Google Scholar

67 Id. at para. 147.Google Scholar

68 Id. at paras. 184–85.Google Scholar

69 See ESM Treaty, supra note 15, at recital 1. Initially, it was foreseen that the EFSF would be able to provide new stability support until the ESM entered into force. Hereafter, the EFSF would only stay involved in assistance programs in which it was already active. In accordance with ESM Treaty recital 6 and art. 39, until the complete run-down of the EFSF, the combined overall EFSF/ESM lending capacity would be set at €500 billion. However, on 30 March 2012, the Eurogroup decided that, for a transitional period until mid-2013, the EFSF may engage in new assistance programs in order to ensure a full, fresh lending capacity of €500 billion. The combined overall EFSF/ESM lending capacity was therefore set at €700 billion. After mid-2013, the maximum ESM lending volume will be €500 billion. According to Article 11(2) of the EFSF Framework Agreement, the EFSF shall be liquidated at the earliest date after 30 June 2013 on which there is no financial assistance outstanding and funding instruments and any reimbursements due to Member State guarantors have been repaid in full. EFSF Framework Agreement, supra note 6, at art. 11(2).Google Scholar

70 See Press Release, European Central Bank, Technical Features of Outright Monetary Transactions (Sept. 6, 2012), available at http://www.ecb.int/press/pr/date/2012/html/pr120906_1.en.html.Google Scholar

71 Decision 2011/199, at recital 4.Google Scholar

72 Even if it would, the question would still need to be answered as to whether TFEU art. 122(2) forms an exclusive competence which excludes the possibility of Member States granting a similar kind of assistance. The Court explicitly states this in paragraph 120 of the judgment.Google Scholar

73 Louis, , supra note 35, at 985.Google Scholar

74 See Regulation 407/2010, supra note 5, at art. 1.Google Scholar

75 In order to make it a truly euro area instrument, one could consider the use of enhanced cooperation—TEU art. 20 and TFEU arts. 326–34. In this scenario, the use of enhanced cooperation for assistance targeted at the stability of the euro area has to be reconciled with the requirement of TFEU art. 328 that enhanced cooperation shall be open to all Member States subject to compliance with any conditions of participation.Google Scholar

76 The EFSM satisfies this requirement because, according to Regulation 407/2010 art. 3(2), the Council has to make a decision each time it wants to grant aid to a Member State. See Matthias Rüffert, The European Debt Crisis and European Union Law, 48 Common Market L. Rev. 1777, 1787 (2011). Under the ESM, this task would fall on the Board of Governors which must decide on the initiation of assistance operations. See ESM Treaty, supra note 15, art. 13(2).Google Scholar

77 Louis, , supra note 35, at 984.Google Scholar

78 A different question, which the Court did not have to deal with, is whether a permanent stability mechanism based on TFEU art. 122(2) can mobilize enough funds. The EFSM's fire power is a mere €60 billion because the outstanding amount of assistance cannot exceed the margin available under the Union's own resources ceiling for payment appropriations. See Regulation 407/2010, supra note 5, at art. 2(2). Interestingly, instead of funds being disbursed by the EFSM and the EFSF in May 2010, the Commission initially proposed to establish one rescue fund on the basis of TFEU art. 122(2) which could only have been relied upon by euro area Member States. See Commission Proposal for a Council Regulation Establishing a European Financial Stabilization Mechanism, COM (2010) 2010 final (May 9, 2010). Similar to the arrangement that was eventually chosen for the EFSM, Union assistance would have been limited to the margin available under the Union's own resources ceiling for payment appropriations. Assistance above this ceiling would have been realized on the basis of the joint and pro-rata guarantee of euro area Member States. This construction was not chosen in the end, partly because of doubts as to whether it conforms to the Union's budget rules.Google Scholar

79 Opinion of Advocate Gen. Kokott, Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____, paras. 114–15, 121.Google Scholar

80 Herrmann, Cristoph, Griechische Tragödie—der währungsverfassungsrechtlige Rahmen für die Rettung, den Austritt oder den Ausschluss von überschuldeten Staaten aus der Eurozone, 21 Europäische Zeitschrift für Wirtschaftsrecht 413, 415 (2010); Gnan, supra note 35, at 99–100; Phoebus Athanassiou, Of Past Measures and Future Plans for Europe's Exit from the Sovereign Debt Crisis: What Is Legally Possible (and What Is Not), 36 Eur. L. Rev. 558, 561 (2011).Google Scholar

81 Smits, , supra note 32; Kurt Fassbender, Der europäische “Stabilisierungsmechanismus” im Lichte von Unionsrecht und deutschem Verfassungsrecht, Neue Zeitschrift für Verwaltungsrecht 799, 800 (2010); Vestert Borger, De eurocrisis als katalysator voor het Europese noodfonds en het toekomstig permanent stabilisatiemechanisme, 59 Tijdschrift voor Europees en Economisch Recht 207, 212 (2011); Rainer Palmstorfer, To Bail Out or not To Bail Out? The Current Framework of Financial Assistance for Euro Area Member States Measured Against the Requirements of EU Primary Law, 37 Eur. L. Rev. 771, 778 (2012).Google Scholar

82 See Häde, Ulrich, Die europäische Währungsunion in der internationalen Finanzkrise—An den Grenzen europäischer Solidarität?, 45 Europarecht 854, 859–62 (2010); Contra Kai Hentschelmann, Finanzhilfen im Lichte der No Bailout-Klausel—Eigenverantwortung und Solidarität in der Währungsunion, 46 Europarecht 282, 294–95 (2011); Rüffert, supra note 76, at 1786–87; see also Ulrich Jan Schröder, Die Griechenlandhilfen im Falle ihrer Unionsrechtswidrigkeit, 64 Die Öffentliche Verwaltung 61, 64 (2011) (dismissing the argument that TFEU art. 125 could have been modified through practice so as to allow financial assistance to safeguard stability in the euro area as a whole).Google Scholar

83 See Stefaan Van den Bogaert & Borger, Vestert, Rechterlijke interpretaties ESM op de pijnbank van de crisis, Het Financieele Dagblad (Dec. 7, 2012), (raising the question of to what extent this requirement prohibits the Union and euro area Member States from accepting a voluntary ‘haircut’ on Greek debt).Google Scholar

84 The view of the Court is, therefore, in line with that of the European Council which had called for a Treaty amendment “not modifying the no-bailout clause.” See supra note 8.Google Scholar

85 EFSF Framework Agreement, supra note 6, at pmbl. (1). It must be admitted, however, that the EFSF Framework Agreement does not specifically state that assistance may only be granted when this is “indispensable” for safeguarding the stability of the euro area as a whole.Google Scholar

86 See also ESM Treaty, supra note 15, at recital 9, art. 6(3) (paying specific attention to non-euro area Member States that provide financial assistance alongside the ESM on an ad hoc basis).Google Scholar

87 Each of these three Member States is subject to a different legal regime concerning their position in the EMU, see supra note 39. All three states are, however, subject to the no-bailout clause in TFEU art. 125.Google Scholar

88 See Statement by the Eurogroup and ECOFIN Ministers (Nov. 28, 2010), available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ecofin/118051.pdf. The financial rescue package consists of an Irish contribution, financed by a Treasury cash buffer and investments by the National Pension Reserve Fund, of €17.5 billion and €67.5 billion of external support. The latter is made up of €22.5 billion from the IMF, €22.5 billion from the EFSM, and €17.7 billion from the EFSF. The United Kingdom (€3.8 billion), Sweden (€0.6 billion) and Denmark (€0.4 billion) provide further support through bilateral loans totalling €4.8 billion.Google Scholar

89 See Merino, De Gregorio, supra note 35, at 1633–34.Google Scholar

90 Treaty of Nice Amending the Treaty on European Union, The Treaties Establishing the European Communities and Certain Related Acts, decl. 6, March 10, 2001, 2001 O.J. (C 80) 78.Google Scholar

91 For an elaborate discussion of how to carry out this balancing exercise, see Louis, supra note 35, at 983–85.Google Scholar

92 Opinion of Advocate Gen. Kokott, Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____, at para. 141.Google Scholar

93 See Smits, , supra note 32, at 289–91.Google Scholar

94 See e.g. TEU, supra note 29, at art. 3(3) TEU (mentioning price stability as an objective to be achieved by the Union) and TFEU, supra note 27, at art. 119(3) (mentioning both sound public finances and stable prices as guiding principles for the economic policies of the Union and the Member States).Google Scholar

95 See also Pisani-Ferry, Jean, The Known Unknowns and Unknown Unknowns of EMU, 7 (Bruegel, Bruegel Policy Contributions, No. 12, 2012), who states: “When thinking about possible threats that EMU should be defended against, policymakers in Maastricht looked back at past experience and identified two: inflation and fiscal laxity. Financial instability was at the time perceived as being of minor importance and, even though currency unification was expected to reinforce financial integration, no provision was envisaged to deal with the effects of private credit booms-and-busts.” Google Scholar

96 Bulletin of the European Communities, Supp. 2/91 Commission of the Eur. Communities (1991).Google Scholar

97 Since the start of the third stage of EMU and until the first half of 2008, the spread between 10-year government bonds of euro area Member States, relative to the German bond, were 16 basis points (bps) on average. After September 2008, the spread for most euro area Member States rose sharply. The case of Greece is illustrative in this regard. Before September 2008, the average spread between Greek and German bonds was 30 bps. However, it rose dramatically after September 2008 to 270 bps in March 2009. See Maria-Grazia Atinnasi et al., What Explains the Surge in Euro Area Sovereign Spreads During the Financial Crisis in 2007–09?, 12–13 (Eur. Cent.l Bank, Working Paper Series, No. 1131, 2009).Google Scholar

98 Klepsch, Catharina & Wollmerhäuser, Timo, Yield Spreads on EMU Government Bonds—How the Financial Crisis Has Helped Investors to Rediscover Risk, 46 Intereconomics 169, 169–70 (2011).Google Scholar

99 Gros, Daniel & Mayer, Thomas, How to Deal With Sovereign Default in Europe: Create a European Monetary Fund Now!, 2 (Centre For Eur. Policy Studies, Policy Briefs, No. 202, 2010).Google Scholar

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101 Id. at 10.Google Scholar

102 But see The European Stability Mechanism, 7 Eur. Central Bank Monthly Bulletin, 78–82 (2011). The insertion of Collective Action Clauses (CACs) in euro area Member States’ government bonds, which is prescribed by ESM Treaty art. 12(3), may enhance market discipline. As such, CACs facilitate private sector involvement in the context of debt restructuring and may support an appropriate pricing of risk in government bond markets.Google Scholar

103 In her opinion, AG Kokott addressed this issue. See Opinion of Advocate Gen. Kokott, Case C-370/12, Pringle v. Ir., 2012 E.C.R. I-____, at paras. 148, 151–52. She held the view that market discipline is ensured as long as the Union and the Member States do not directly meet the demands of the recipient Member State's creditors. As long as uncertainty exists about whether the recipient Member State will actually use the assistance to pay off its creditors, which is the case under the ESM, a sufficient degree of market discipline would be ensured. However, it is doubtful whether this uncertainty really guarantees a sufficient degree of market discipline.Google Scholar

104 Case No. 2 BvR 1390/12, supra note 2, at paras. 232–33.Google Scholar

105 Id. at paras. 233–34.Google Scholar

106 ESM Treaty, supra note 15, at art. 3.Google Scholar

107 European Parliament Resolution of 23 March 2011 on the Draft European Council Decision Amending Article 136 of the Treaty on the Functioning of the European Union With Regard to a Stability Mechanism for Member States Whose Currency is the Euro, para. 6, 2012 O.J. (C 247 E) 22, 24.Google Scholar

108 Statement, Heads of State or Government of the Euro Area, (May 7, 2010).Google Scholar

109 Bulletin of the European Communities, supra note 96, at 20, 64–65 (Dutch version). The irrevocability of fixing the exchange rates also becomes apparent from the provisions in the TFEU on Member States with a derogation, in particular TFEU article 140(3).Google Scholar

110 André Szász, Een Duits Dilemma: De Euro van Geloofwaardigheids-naar Vertrouwenscrisis, 66 Internationale Spectator 137, 139 (2012).Google Scholar

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