EUROPE’S CRISIS-LAW AND THE WELFARE STATE – A CRITIQUE

Stefano Giubboni

Abstract


The great economic crisis – the worst and longest at least since the post-war period, which is still holding a large part of Europe in an unequal grip – has a constitutional dimension that has certainly been overlooked, compared to other more direct and visible repercussions. In recent years the measures put into force by supranational institutions, both outside and within the traditional channels of EU law, to counteract the sovereign debt crisis by deeply modifying the economic governance of the Union, have in fact ended up questioning some of the most established paradigms that have historically forged – and constitutionally legitimised – the process of ‘integration through law’. According to the most credible hypothesis, European integration should be conceived – particularly in its foundation – as a political project, the implementation of which is essentially left to economic processes mediated by the law. The German ‘Ordoliberal’ theorists were the group that grasped the meaning of this project better than others,identifying the constitutional anchorage of the newly-born European Economic Community (EEC) with the fundamental economic freedoms and with the system of undistorted competition established by the 1957 Treaty of Rome. Economic and monetary Union (EMU) would have had to refine this project by bringing it to completion; but as is well known the foundation of the whole edifice started to erode soon after its construction (§ 2).

The financial and sovereign debt crisis has dramatically revealed the fragility of the EMU and the substantial erroneous basis of the constitutional premises on which it was built according to the Maastricht Treaty, with a fundamental decision to create a ‘currency without a sovereign’ (Fitoussi 2013, pp. 120 ff.).The response to the crisis pursued by the EU unsuccessfully aimed at compensating these original defects of construction, by introducing regulatory mechanisms which, in practice, have deprived national democratic institutions (primarily parliamentary) of their budgetary powers at least in the debtor-States) and removing the residual autonomy of the Euro-zone Member States as to their choices regarding fiscal and social policies. The most vulnerable countries are now subjected to unsustainable semi-permanent austerity constraints, set by European level mechanisms according to an ideologically uniform approach (a rigid ‘one-fits-all-approach’), that consequently increases the powerfully divisive effects of the economic crisis, at the risk of (political) disintegration.

The new European crisis-management-law, therefore, triggers apparently contradictory processes that actually coalesce into a questioning of the original constitutional assumptions of European integration. On one hand (§ 3), we are witnessing a shift in the locus of core decisions regarding essential aspects of State public policies from the national to the supranational level. The Treaty on Stability, Coordination and Governance of the economic and monetary Union (an unprecedented example of Ersatzunionrecht has firmly placed at its core the new ‘golden rule’ of a balanced-budget. On the other hand (§ 4), the very same process of ‘dethroning politics’, has been entrusted to governance-mechanisms – broadly defined outside the perimeter of the classic Community-method and even of EU law –, which hand over decisions to be taken by opaque and unaccountable technocratic élites and which, by definition, evade the traditional constraints of Community rule of law by putting it beyond the reach for an effective judicial review.

 

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Comparative Law Review is registered at the Courthouse of Monza (Italy) - Nr. 1988 - May, 10th 2010.
Editors - Prof. Giovanni Marini, Prof. Pier Giuseppe Monateri, Prof. Tommaso Edoardo Frosini, Prof. Salvatore Sica, Prof. Alessandro Somma, Prof. Giuseppe Franco Ferrari.

Direttore responsabile:Alessandro Somma