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 Greece encounter in the negotiation of the amendment of article 136 TFEU?
There were no major political/legal difficulties in the negotiation of the amendment of article 136 TFEU. This was presented by the Greek Government (PA.SO.K.) as the result of a difficult negotiation, as a success in the effort to save the State from bankruptcy and as a symbol of the decisiveness of the European partners of Greece to support the country. However, concerning the concrete structure of the Stability Mechanism, the Prime Minister Giorgos Papandreou emphasized the need to preserve the autonomy and the equality of States, independent of the size of their national debt, as well as the need for growth provisions.
The content of the amendment of the TFEU has been debated shortly in Parliament, on the 28th of March 2012, and only in relation with the agreement for the creation of the ESM. Especially concerning the amendment, the main issue debated in Parliament concerned the approval procedure. Indeed, during its negotiation, the deputies of SY.RIZ.A. and other academic and political cycles demanded a referendum in order for this amendment to enter into force. The Prime Minister responded that he had mentioned to the European Heads of State the possibility for him to organize a referendum in case the changes concerning the EU and the Eurozone are very important.
How has the 136 TFEU Treaty amendment been approved in Greece and on what legal basis/argumentation?
The Greek Constitution contains several rules concerning the approval of treaties and treaty amendments.
In particular, article 36 of the Greek Constitution declares:
“1. The President of the Republic, complying absolutely with the provisions of article 35 paragraph 1, shall represent the State internationally, declare war, conclude treaties of peace, alliance, economic cooperation and participation in international organizations or unions and he shall announce them to the Parliament with the necessary clarifications, whenever the interest and the security of the State thus allow.
2. Conventions on trade, taxation, economic cooperation and participation in international organizations or unions and all others containing concessions for which, according to other provisions of this Constitution, no provision can be made without a statute, or which may burden the Greeks individually, shall not be operative without ratification by a statute voted by the Parliament.
3. Secret articles of an agreement may in no case reverse the open ones.
4. The ratification of international treaties may not be the object of delegation of legislative power as specified in article 43 paragraphs 2 and 4.”
Moreover, article 28 declares:
“1. The generally recognised rules of international law, as well as international conventions as of the time they are sanctioned by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.
2. Authorities provided by the Constitution may by treaty or agreement be vested in agencies of international organizations, when this serves an important national interest and promotes cooperation with other States. A majority of three-fifths of the total number of Members of Parliament shall be necessary to vote the law sanctioning the treaty or agreement.
3. Greece shall freely proceed by law passed by an absolute majority of the total number of Members of Parliament to limit the exercise of national sovereignty, insofar as this is dictated by an important national interest, does not infringe upon the rights of man and the foundations of democratic government and is effected on the basis of the principles of equality and under the condition of reciprocity.”
An interpretive statement added with the constitutional reform of 2001 declares that “Article 28 is the basis for the participation of the Country in the procedures of European integration.”
Thus, article 28 of the Constitution in combination with the EU treaties, habilitate the EU institutions to exercise constitutional competences and, under certain conditions, to restrict the national sovereignty of Greece. Therefore, this article is considered by the majority of the doctrine to have a “tacit constitutional reform function”. In the case of the amendment of article 136 TFEU it was the Prime Minister, Giorgos Papandreou, who represented the country by participating in the meeting of the Council where this amendment was decided.
The statute approving the amendment of Article 136 TFEU was voted according to the regular parliamentary procedure of articles 70 f. of the Constitution. The constitutional basis invoked by the Government for the following of this procedure was article 28 paragraph 1 of the Constitution, which states that “The generally recognised rules of international law, as well as international conventions as of the time they are sanctioned by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.” An interpretive statement added to the constitutional reform of 2001 declares that “Article 28 is the basis for the participation of the Country in the procedures of European integration.” The article, however, does not specify the majority required for the vote of the statute ratifying the treaty.
What political/legal difficulties did Greece encounter during the ratification of the 136 TFEU Treaty amendment?
There have been no major legal/political problems during the approval of the amendment of article 136 TFEU. This amendment has been presented as a habilitation for the creation of a mechanism for the financial help of countries like Greece. Thus, it has been considered by most political parties (PA.SO.K., N.D., LA.O.S., DIM.AR., DI.SY.) the symbol of enhanced cooperation and solidarity in the European Union, and a step towards the redistribution of budgetary resources between Eurozone member states and towards further European integration. The rest of the parties (SY.RIZ.A. and K.K.E.) have criticized this amendment only in relation to the following Euro-crisis legal instruments (the ESM and the Fiscal Compact).
However, things have been more complicated as far as the approval procedure is concerned, the debates for which took place during the campaign for the elections of the 6th May 2012. The amendment of the TFEU treaty was part of a more general draft bill, which also contained the ratification of the ESM and the Fiscal Compact. Therefore, debates concerning the constitutionality of the bill, and especially of the procedure of voting, were sometimes focused on these texts (see also questions VIII.2, VIII.3 and IX.3). The bill approving the Treaty amendment was drafted on March 15th, 2012 and was debated and voted in Parliament on March 28th, 2012. It was voted in one day, with a majority of 194 deputies out of the 253 present voting in favor (total of deputies is 300). The deputies of PA.SO.K. and N.D., the two parties of the government coalition at the time, voted in favor. The members of SY.RIZ.A., DIM.AR., LA.O.S., and DI.SY. voted against. However, the members of DIM.AR. did not disapprove the treaty amendment itself, for which they declared “present”. Instead they voted against the statute in principle. It is interesting to note that LA.O.S. had participated in the government at the time of the decision of 9 December 2011(the political decision leading to the 136 TFEU amendment and the Fiscal Compact).
During the parliamentary debates on 28 March 2012, the deputies of the opposition accused the PA.SO.K./ND Government of hiding these treaties from the Greek people, through the concise parliamentary procedure mobilized for their ratification. In general, especially the deputies of SY.RIZ.A. and LA.O.S., repeatedly criticized the functioning of the Parliament and the negligence to the parliamentary procedure and monitoring by the Government. In response, the deputies of PA.SO.K. claimed that they were “not acting in absentia of the Greek people because, by voting these treaties, [they were] supporting the basic choice of the Greek people, which is that the country remains in the Eurozone.”
More precisely, deputies from LA.O.S. objected that the statute in question, because of its crucial importance for Greece and for Europe in general, and because of the fact that it attributes constitutional competences concerning fiscal and budgetary policy to organs of international organizations, should be voted according to the procedure defined in paragraph 2 of article 28. According to this paragraph, “Authorities provided by the Constitution may by treaty or agreement be vested in agencies of international organizations, when this serves an important national interest and promotes cooperation with other States. A majority of three-fifths of the total number of Members of Parliament shall be necessary to vote the law sanctioning the treaty or agreement.” (180/300). The members of LA.O.S. argued that it was the Fiscal Compact that imposed a qualified majority for ratification in order to enter into force. They argued that the treaties under ratification change the structure and the decision-making procedure inside the Eurozone, and thus constitute a concession of constitutional competences to the Eurozone organs. Thus, in order to preserve the validity of the voting procedure and to prove that the statute had been adopted by the qualified majority required, they demanded the procedure of nominal vote, which was followed at the end.
The members of SY.RIZ.A. rejected the competence of Parliament to amend the treaties of the European Union. Reiterating objections already raised during the negotiation of the amendment of article 136 TFEU (see question V.1), they argued that this amendment, as well as the ESM and Fiscal Compact entailed an amendment of the Constitution. Thus, a constitutional reform or a referendum was required, following the example of other European countries, like Ireland. In order to support the argument, the deputies invoked article 3 paragraph 2 of the Fiscal Compact. Thus, they invited the government to proceed to a referendum for the ratification of these provisions, or, at least, to wait for the elections, which were scheduled for the 6th of May. In any case, they argued that the government did not want to follow the special procedure of article 28 paragraph 2, even though it possessed the qualified majority needed, because it did not want to create a precedent for future voting procedures. Mobilizing these arguments, the deputies of SY.RIZ.A. raised an objection of unconstitutionality before the Parliament, which was rejected by a raising vote, according to article 100 paragraph 2 of the Standing Orders of Parliament.
Finally, the deputies of DIM.AR. emphasized the fact that the majority required was the absolute majority of the total number of deputies (151/300), according to paragraph 3 of article 28. According to this paragraph, “Greece shall freely proceed by law passed by an absolute majority of the total number of Members of Parliament to limit the exercise of national sovereignty, insofar as this is dictated by an important national interest, does not infringe upon the rights of man and the foundations of democratic government and is effected on the basis of the principles of equality and under the condition of reciprocity.” The deputies of DIM.AR. alleged that paragraph 1 of article 28 of the Constitution, invoked by the government, was only interpretive and did not require a specific procedure for the ratification of European treaties, which have been always voted according to the third paragraph of this article. Indeed, according to them, the European Union is not an international organization but a union which they would like to be federal.
The deputies of the governing parties (PA.SO.K. and N.D.) argued, however, that the Treaty amendment, the Fiscal Compact and the ESM do not expand the competences of the European Union. To support their argument they invoked the simplified procedure of Treaty revision followed. In addition, the deputies of N.D. argued that European Union is not an international organization, according to the terms of article 28 paragraph 2 of the Greek Constitution, but a sui generis state organization.
The Greek constitutional doctrine has been divided on the subject. Most scholars, however, before the Eurozone crisis, considered that for the ratification of European Treaties and their amendments in general (and not with the simplified procedure followed), the Constitution requires a combined application of the procedural conditions of paragraph 2 and the substantial conditions of paragraph 3. Nevertheless, they emphasized that “the solution will not become definitive, until the broad until now parliamentary majority for the support of the European course of the country breaks.”
Is there a (constitutional) court judgment in Greece on the 136 TFEU Treaty amendment?
No, there is no court judgment on the 136 TFEU Treaty amendment. Indeed, in Greece there is no general possibility to directly attack legal statutes before the court. Instead, judicial review of the legislator is diffused among all jurisdictions of the civil and administrative order, and is finally concentrated in the Supreme Administrative and Judiciary Courts (Council of State – “Symvoulio tis Epikrateias” and Areios Pagos respectively). Each justiciable possessing a legitimate interest, in the occasion of a litigation before a judge, can raise an objection of unconstitutionality of a legal statute applied in the case, both in case this statute is applied directly, and in case it is the legal basis of another act. According to article 93 paragraph 4 of the Constitution, “The courts are obliged to preclude the application of a legal statute, whose content is contrary to the Constitution.” Courts apply the same constitutional basis, in combination with article 28 paragraph 1, in order to monitor the compatibility of ordinary law with international conventions. Indeed, article 28 paragraph 1 declares: “The generally recognised rules of international law, as well as international conventions as of the time they are sanctioned by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.” The result of unconstitutionality/unconventionality is the non-application of the statute in the concrete case before the judge. Courts in general refuse to examine the respect of the rules of parliamentary procedure, which is considered interna corporis of the legislator. In any case, given that the TFEU amendment was approved in 2012 and given the time-consuming character of Greek judicial procedures, there is no court judgment on the 136 TFEU Treaty amendment.
What other information is relevant with regard to Greece and the 136 TFEU Treaty amendment?