The Euro-crisis and the courts : Judicial review and the political process in comparative perspective

Abstract

The Euro-crisis and the legal responses to it have profoundly changed the constitutional architecture of the Economic and Monetary Union (EMU) leading to the introduction of tighter budgetary rules, new mechanisms of financial stabilization and a comprehensive framework of economic adjustment for states in fiscal troubles. Yet, during the last years, the legal measures enacted by the European Union (EU) and the member states to respond to the crisis have increasingly fell prey to the scrutiny of courts, both at the national and supranational level. This paper provides a first comprehensive analysis of decisions by high courts in Estonia, France, Germany, Ireland, Portugal and the EU with the aim to discuss the role of the judiciary in fiscal affairs. The paper identifies a trend of increasing judicial involvement in EMU and explains it in light of the intergovernmental approach followed to respond to the Euro-crisis. As the paper argues, the choice of an intergovernmental management of the crisis, with frequent resort to international agreements outside the framework of EU law, has paradoxically produced greater judicialization than what would have occurred had the member states acted within the EU legal order. As the paper suggests, though, constitutional arguments related to expertise, voice and rights still plead in favor of letting the political branches take the lead in fiscal affairs. Hence, the paper concludes by indicating that future reforms of the EMU should be carried out through EU legislation – which is more legitimate in democratic terms (because of the political guarantees that surround law-making in the EU) and more secure in judicial terms (because of the more limited space for judicial overreach). Yet, the paper also underlines how the EU political process needs urgently to be reformed in order to improve its legitimacy and democracy.