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 Portugal encounter in the negotiation of the amendment of article 136 TFEU?
See question V.3.
How has the 136 TFEU Treaty amendment been approved in Portugal and on what legal basis/argumentation?
The approval of the 136 TFEU Treaty in Portugal followed the procedure of ratification of an international treaty. The procedure of ratification of an international treaty in Portugal is part of the Parliament´s political and legislative competence, as is stated on Article 161 of the Constituição da República Portuguesa (hereafter CRP). In what concerns the type of document adopted, accordingly with Article 166 (5) CRP, in the case of an international treaty the Parliament adopts a Resolution. Following the approval of the Parliament´s the resolution, by simple majority, in this case about the ratification of the 136 TFEU amendment, the document was signed by the President in accordance with Article 135 b) CRP. Resolution n.º 9/2012 was approved by the Parliament on the 9th December 2011, ratified by the President and published on the 2nd February 2012 and finally the ratification of the amendment was notified to the EU Council on the 6th February 2012.
The power of the Portuguese Parliament during the ratification
According to Article 161 (i) Const. the Parliament authorises the ratification of international treaties entailing Portugal’s participation in international organisations, friendship, peace, defence, the rectification of borders or military affairs, as well as international agreements that address matters which are the exclusive responsibility of the Assembly, or which the Government deems fit to submit to the Assembly for consideration.
The power of the President and of the Constitutional Court during ratification
In accordance with the wording of Article 135 (b) CRP, the President of the Republic ratifies international treaties once they have been duly passed by the Parliament if so provided for by the Constitution (Article 161 (i) Const.). Nevertheless before the ratification the President may take one of the two following actions: the first is to request a prior review of constitutionality within 8 days, as is stated in Article 278 (1) CRP. The Constitutional Court takes on average 25 days to decide and if it declares the unconstitutionality of any rule laid down by an international treaty, the President cannot enact it and the document has to be returned to the body that passed it. The ratification finally takes place if the unconstitutional norms are expunged from the revised text passed by the Parliament; or if a majority at least equal to two thirds of the members of the Parliament present and higher than the absolute majority of the Parliament’s components authorizes this ratification in spite of the Court’s ruling.
The second possibility is the veto, which is part of the President´s powers, to be exercised within 20 days (in the case of Parliament’s documents) if the Constitutional Court has not declared the unconstitutionality of that document. The veto is relative that means that it can be overcame by the Assembly of the Republic by an absolute majority and the President is then obliged to enact the it within 8 days. (see Article 136 (2) CRP).
What political/legal difficulties did Portugal encounter during the ratification of the 136 TFEU Treaty amendment?
Resolution n.º 9/2012 approved Council’s Decision of 25 March 2011 that amended article 136 of TFEU. The decision was approved with the favourable votes of three parties (PSD, PS, CDS-PP) and the votes against of the three remaining parties (PCP, BE, PEV) – December 9th, 2011.
BE argued for a referendum on this matter (see the answers to questions IV.1 and IX.2). The amendment was described, by the BE, as out-dated and inefficient; for that reason, both in Germany and France alternatives had been discussed. Instead of ESM, BE suggested the adoption of a mechanism of cooperation that would curb the pressure from speculative markets over sovereign debt. BE reaffirmed that this mechanism interferes with national sovereignty and the approval of national budgets by imposing exogenous constraints – which do not result from public election. In the same line, an amendment to the Treaties that define the Union, and that modify the ways and rules by which Portugal participates, should be submitted to a national referendum. The BE proposal was rejected by Parliament on the 9th of December with votes against by PSD, PS and CDS –PP and favourable votes by PCP, BE and PEV.
Is there a (constitutional) court judgment in Portugal on the 136 TFEU Treaty amendment?
What other information is relevant with regard to Portugal and the 136 TFEU Treaty amendment?
No other relevant information.