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 France encounter in the negotiation of the amendment of article 136 TFEU?
The process of negotiation of the amendment of article 136 TFEU appears to have been led by the executive with relatively little involvement of the Parliament – which was regretted by the opposition.
Initially, French President Nicolas Sarkozy was against a reform of the EU Treaties. He eventually agreed to amending article 136 TFEU in a compromise reached with German Chancellor Angela Merkel in Deauville, on 18 October 2010. France thus respected the German concerns – emphasised by the German Constitutional Court – over the legality under EU law of the anti-crisis stability mechanisms.
As part of the compromise, France obtained that sanctions for States that would not comply with the rules of the EMU should not be automatic, but that it would remain a political decision taken at the Council.
Another point of the compromise regarded the contribution of the private sector in the resolution mechanism. The French position on this topic appears to have been cautious, arguably in order not to upset investors, leaving the details of this participation to later measures.
How has the 136 TFEU Treaty amendment been approved in France and on what legal basis/argumentation?
The approval of the 136 TFEU Treaty amendment was submitted as an Act, through an “accelerated procedure”, by the President of the Republic Nicolas Sarkozy to the vote of both Houses of Parliament. The same Act authorised the ratification of the ESM Treaty. The government submitted the proposal of Act to Parliament for approval/ratification, as required under article 53 of the Constitution.Under article 53 of the Constitution, “Peace Treaties, Trade agreements, treaties or agreements relating to an international organization, those committing the finances of the State, those modifying provisions which are the preserve of statute law, those relating to the status of persons, and those involving the ceding, exchanging or acquiring of territory, may be ratified or approved only by an Act of Parliament”.
An “accelerated procedure” (see annex) was used which shortens the procedure of adoption of the Act, in particular by limiting the number of readings of the Act to one in each Houses. Adopted by both Houses after one reading, the Act authorising the approval of the amendment of article 136 TFEU was published in the Official Journal on March 8, 2012.
What political/legal difficulties did France encounter during the ratification of the 136 TFEU Treaty amendment?
The debates which arose during the process of approval of the amendment of article 136 TFEU were tightly intertwined with more general arguments over the French and European response to the crisis, in particular over the ESM Treaty and the Fiscal Compact. The context of ratification facilitated this connection.
First, the proposal of Act authorizing the approval of the amendment of article 136 TFEU was examined jointly with the proposal of Act authorizing the ratification of the ESM Treaty, and voted immediately one after the other.
Second, the participants underlined that the ESM Treaty contained a political commitment to make the benefit of the Stability Mechanism depend on the ratification of the Fiscal Compact. Therefore, debates over the amendment of article 136 TFEU and the ESM Treaty also involved considerations over the Fiscal Compact. This explains how justifications given for abstention votes (mainly PS and associates) and votes against (mainly far left GDR and CRC, and ecologists) the approval of the amendment of article 136 TFEU drew on more varied and comprehensive issues. These included: the opportunity to renegotiate the Fiscal Compact; the focus on austerity of the current instruments in comparison with concerns over growth; the brutality of the conditionality imposed on bail-out countries, in a process leading to the subordination of sovereign States to other States or bureaucrats; sovereignty and democratic issues, in particular the role of the national and European Parliament(s); wishes for more ambitious EU Treaty reforms; the Franco-German relationship, and different assessments of the German role in the management of the Eurozone crisis.
These more comprehensive issues constituted the background to the main obstacles to the draft law in both Houses of Parliament. The PS and its associates abstained from voting the Act, in both Houses – including the Senate where a PS led coalition had won a small majority in September 2011 (see question I.1 on the political context for more information on majority changes). The far left and ecologists voted against the Act. A prior “rejection proposal” was introduced before the National Assembly, as well as an “objection of inadmissibility” in the Senate. Both had been lodged by the far left, and both were rejected. In the end, the draft law was adopted after the first reading by both Houses, with centre and right-wing votes, in virtue of an “accelerated procedure” that had become common use under President Sarkozy even before the crisis. The parliamentary debates show that it was important to the French government to be the first to ratify these instruments, so as to set an “example” and give momentum to a process of ratifications that could face difficulties across Europe.
While the approval procedure of the 136 TFEU amendment implied wide-ranging debates over the Euro-zone crisis as a whole, the focus will here be on the arguments dealing directly with the amendment itself (for the other parts of the debate see also questions VIII.3 and IX.3).
Concern was raised over the simplified procedure used by the European Council to adopt the decision to amend art.136 TFEU. A parliamentary question to the government raised this issue as soon as January 2011, arguing that substantial changes to the organisation of the powers of the EU should have triggered the ordinary procedure for Treaty modification, considered less intrusive on sovereignty and democracy. The answer given by the right-wing government was twofold: first, the amendment does not expand competences of the EU, the ESM being an international organisation, based on a treaty that would need to be ratified by the Parliament; second, the 136 TFEU amendment would also need to be approved by the Parliament.
However, this criticism was maintained throughout the debate in February 2012 in both Houses. The far left, especially, considered that using the simplified revision procedure was illegal under art. 48(6) TFEU, as the art.136 TFUE amendment would de facto enhance the competences of the European Commission, of the ECB and of the European Court of Justice, through their participation in the European Stability Mechanism. The “objection of inadmissibility” lodged at the National Assembly by the far left (CRC) put forward that the amendment of article136 TFEU was a key element in a mechanism jeopardizing greatly budgetary sovereignty. It also read that the amendment was illegal under EU law, as the simplified procedure would not be fit for a disposition leading to an expansion of the competences of the EU. However, this objection was voted down by center and right wing MPs, Socialist Party MPs abstaining from the vote.
Regarding the broader issue of the diminution of the role of the parliaments, the Report by a PS-led left coalition for the European Affairs Committee at the National Assembly, presented by socialist MP Elizabeth Guigou, stressed that recourse to the simplified procedure ruled out the use of a Convention to modify the Treaty, and de facto deprived national parliaments of the role that would have been theirs in that forum. According to the Report, it participated in a more general trend of marginalisation of both European and national parliaments.
More generally, it was argued that national parliaments should be involved more closely in the negotiations on budgetary coordination, as such issues lied at the heart of their prerogatives. However, the proposition of a European resolution “on European recovery and the strengthening of democratic control”, put to the vote in the National Assembly by the centre-left coalition, was defeated by the right wing majority.
The president of the Foreign Affairs Committee at the Senate, Jean-Louis Carrère (PS), criticised the repeated use (19 times since October ) of “accelerated procedures” by the French government to deal with the crisis, thus constraining the role of the Parliament.
Opacity of the intergovernmental process, even for parliaments, was criticised by the centre-left and the far left. According to them, the government viewed the Parliament as simple “Houses of registration”, while its Constitutional role as well as the 1789 French Declaration of the Rights of Man and the Citizen made it “Houses of decision”.
By contrast, UMP senator Marie-Hélène Des Esgaulx opposed the view that parliamentary control was undermined by the activity of the Executive branch in the European forum. Instead, she argued for an institutional re-balancing in the EU in favour of more inter-governmentalism, understood as more fit to State sovereignty and Parliaments’ rights.
The far left deplored also that the French Constitutional Court was not consulted by the Government or the right wing majority on these amendments and treaties, while core budgetary power issues were at stake. At the Senate, CRC Eliane Assassi unsuccessfully invited the PS to use article 54 of the French Constitution allowing 60 senators or 60 members to ask the Constitutional Court if the adoption or the ratification of an international undertaking was contrary to the Constitution, in which case authorization to adopt of ratify the undertaking would be subject to prior amendment of the Constitution.
One leading justification in favour of the amendment of art.136 TFEU was that it would enhance legal certainty over the relationship between the ESM Treaty and the “no bail-out” clause enshrined in art.125 TFEU. Still, it was generally specified at the same time that such amendment was adopted on German insistence. At the National Assembly, Jean-Marc Roubaud (UMP) considered that, even if useful, it was not a necessary amendment. However, senator Nicole Bicq (PS) underlined in a Report for the Finances Commission that a possible incompatibility between the ESM and art.125 TFEU could have important consequences, according to the interpretation of the German Constitutional Court regarding the conformity of the ESM to the EU Treaties.
Arguments from the PS implied however that the process of approval of an amendment of art.136 TFEU would also contribute to a “climate of uncertainty” on the markets and for the citizens regarding the European responses to the crisis, as it would need to be ratified by all EU Member States, including the UK – an outcome considered uncertain.
Developing further on the role of the French and German governments in the adoption of the amendment, the President of the Foreign Affairs Committee at the National Assembly, Axel Poniatowski (UMP) argued that the approval/ratification of both the 136 TFEU amendment and ESM Treaty, as well as the Fiscal Compact (TSCG), sealed and founded anew the Franco-German alliance, in a constructive relationship where no-one imposed its views on the other. He also mentioned how France had convinced Germany to accept the principle of a “European IMF” such as the ESM. In this perspective, these treaties would constitute a salutary inflexion in the history of the construction of the EU, with the idea more and more broadly accepted of a multiple speed Europe, where differentiated cores of countries would be allowed to take integration further.
The turn taken by European integration was however not accepted by all, especially by the far left. The conditionality enshrined in art.136 was perceived by GDR Jean-Pierre Brard as interfering with European States’ sovereignty, and its manifestations in the practice of the bail-outs considered brutal. UMP Pascale Gruny’s answered that conditionality was only a counterpart for solidarity and financial help, and a duty of the lender to see how the money is used and if it can be reimbursed.
On a more technical account, the Rapporteur to the Foreign Affairs Committee at the National Assembly on the draft law authorising the approval of the 136 TFEU amendment – and the ratification of the ESM Treaty – underlined that there was no calendar difficulty in setting up the ESM before the 136 TFEU amendment enters into force, as the amendment was not necessary to habilitate the government to create the mechanism, but only to recognise that it could do so.
Is there a (constitutional) court judgment in France on the 136 TFEU Treaty amendment?
There is no decision by the Constitutional Council on the amendment of article 136 TFEU. However, the French Government has sought and received advice from the Council of State (Conseil d’Etat), the highest administrative court in the French legal system, on the legality of the article 136 TFEU Treaty amendment (see also question VIII.4).
What other information is relevant with regard to France and the 136 TFEU Treaty amendment?