At the 16/17 December 2010 European Council a political decision was taken to amend the Treaties through the simplified revision procedure of article 48(6) TFEU. On March 25, 2011 the European Council adopted the legal decision to amend article 136 TFEU by adding a new third paragraph: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”
The process of approval of this decision by the member states in accordance with their respective constitutional requirements as prescribed by article 48(6) has been completed and the amendment has entered into force on 1 May 2013.
What political/legal difficulties did Finland encounter in the negotiation of the amendment of article 136 TFEU?
No significant political or legal difficulties were encountered in the negotiation of the amendment of Article 136 TFEU.
The Government explained its position to Parliament on 2 October 2010 (E 86/2010 vp). According to the Government position, even if the amendment was found legally unnecessary, its necessity related to the possibility to do away with fears and doubts expressed relating to the lawfulness of past decisions. For Finland it was important that Article 125 TFEU was not amended, and that the sanctions pertaining to the membership right which were discussed earlier could not be amended in the planned procedure.
The Parliament supported the views of the Government (Statement of the 15 October 2010 of the Grand Committee of the Parliament, SuVL 11/2010 vp).
In addition, the Constitutional Law Committee considered the matter in abstract in the context of the six-pack discussions (See PeVL 49/2010 vp), pointing out that the proposed framework of developing the coordination of economic policies has in recent discussions been repeatedly found insufficient. The new ideas presented would, however, presume Treaty changes. While it still seemed uncertain what amendments would be made, it was evident that the idea was to amend Article 136 TFEU to specify that a mechanism could be established by the euro area Member States to coordinate their economic policies more effectively. Also the possibility of including the main features of the mechanism in Article 136 TFEU had been mentioned. The Committee noted the agreement among the Member States that the amendment should fall under the simplified amendment procedure under Article 48(6), but would still presume national ratification. Based on the information received from the Government, it seemed that the envisaged amendment could fall under Article 48(6), but no final findings could be made on this issue as long as the proposed changes remained uncertain. The Committee stressed that no new competences could be added to the Union under this procedure. This meant for example that sanctions involving the loss of voting rights by a Member State could not be introduced under this procedure.
How has the 136 TFEU Treaty amendment been approved in Finland and on what legal basis/argumentation?
The Government proposal (No 12/2011 vp, eduskunnalle Euroopan unionin toiminnasta tehdyn sopimuksen 136 artiklan muutoksen hyväksymisestä) was presented on 22 July 2011. It was announced in the Parliament on 6 September 2011 and sent to the Committees of the Parliament on 14 September 2011. After the Committee handling it was returned to the plenary for consideration and was discussed on 3 May 2012. The act was approved by the Parliament on the 9 May 2012 (aye 120 – no 33, with the True Finns voting against the adoption ) and by the President on 25 May and the Council of State (the Government) issued the decree (324/2013) bringing the amendment in force in Finland on 6 May 2013.
The Treaty amendment was accepted by the Parliament according to the Section 94.1 of the Constitution of Finland. (Sec. 94.1, first sentence: “The acceptance of the Parliament is required for such treaties and other international obligations that contain provisions of a legislative nature, are otherwise significant, or otherwise require approval by the Parliament under this Constitution.”)
The key aspect in the consideration o the Constitutional Law Committee (PeVL 6/2011 vp) related to whether the amendment, which was considered rather technical and declaratory in character, would be taken to the Parliament for approval. Treaties or other international obligations usually require the approval of Parliament on the grounds that they contain provisions of a legislative nature. According to the Constitution of Finland, a matter is legislative in case it affects the rights and obligations of private individuals (Section 80 of the Constitution) or if the Constitution otherwise requires for an act to be adopted. Further, the parliament’s Constitutional Law Committee has clarified that a matter is of a legislative nature if it affects the foundations of an individual’s rights or obligations; if the same matter is currently regulated in an Act of Parliament or if there is a general understanding that the matter should be regulated by such Act (PeVL 11/2000 vp, PeVL 12/2000 vp, and PeVL 45/2000 vp). Provisions in international obligations that are of a legislative nature and other significant commitments also fall within the parliament’s competence (Section 95).
The Article 136 TFEU amendment was, however, not understood by the Committee to be ‘legislative’ in character or substance, but was instead presumed to require the Parliament’s approval because of being ‘otherwise significant’ under Section 94.1 of the Constitution. Such a decision when not affecting the Constitution or a transfer of powers to the Union is made by a majority of the votes cast in Parliament. The Constitutional Law Committee motivated this interpretation given to the Constitution by stating that although being rather technical, the amendment did touch the Treaty system, which had in its turn previously been approved by the Parliament, and was of a particular importance for the Union in the current turbulent situation (PeVL 6/2011 vp). The Parliament ultimately approved the amendment without further ado.
What political/legal difficulties did Finland encounter during the ratification of the 136 TFEU Treaty amendment?
From the perspective of Finnish constitutional law the said amendment did not provide for particular difficulties. Of course, there were voices both within the Parliament and outside it who saw such an amendment of the TFEU as conferring new competence on the Union, and considered that the simplified revision procedure (Art. 48(6) and (7) TEU) could and should not be invoked for this purpose (PeVL 6/2011 vp, see in particular the attached dissenting opinion).
Is there a (constitutional) court judgment in Finland on the 136 TFEU Treaty amendment?
See in general about the absence of a constitutional court in Finland and about the ex ante consideration of crisis measures by the Constitutional Law Committee of parliament, question IV.5. For the Constitutional Law Committee’s findings on the 136 TFEU treaty amendment, see questions V.9 and V.10.
What other information is relevant with regard to Finland and the 136 TFEU Treaty amendment?
In Finland, the government’s and Constitutional Law Committee’s characterisation of the amendment followed largely the same logic that the CJEU later adopted in discussing the measures in its Pringle ruling, focusing on how the amendment did not confer any new competence on the Union and how the ESM Treaty was compatible with the relevant provisions of the TFEU. The Government did not intervene in the proceedings, but the ruling was still met with a certain degree of relief, since another outcome – even if perceived as unlikely – would have caused obvious embarrassment.