Nature national instruments
What is the character of the legal instruments adopted at national level to implement Euro-crisis law (constitutional amendment, organic laws, ordinary legislation, etc)?
Slovakia adopted a complex fiscal legislative reform. On the apex is the Fiscal Responsibility Constitutional Act as a separate constitutional law that introduces debt brakes, new institutional framework (Council for Budget Responsibility and two committees – for macroeconomic forecasts and for tax forecasts), and transparency rules. These rules are further detailed through amendments to budgetary rules (two statutes – for general government and for territorial self-governments), and minor changes to the law on budgetary assignment of taxes (mainly balancing new requirements for territorial self-governments). The details are set by Ministry of Finance’s by-laws (especially regarding details on process, content, and form of data and information obligations of public authorities) and statutes of the Council for Budget Responsibility and the committees. Other changes result from activities of the Council for Budget Responsibility, which created an advisory panel for supervising its methodology and other work-in-progress adaptation to the new rules. Finally, information gathered in the course of this report suggests that many obligations resulting from regulations are not explicitly implemented and the authorities rely directly on the EU regulations.
To understand the position of FRCA within the Slovak legal order, I shall briefly explain the structure of the Slovak legal order. In general, there are two forms of parliamentary legislation in Slovakia – constitutional acts and ordinary statutes. All constitutional acts are, in theory, equal. They can take the form of amendment to existing constitutional law or of new constitutional act. One of the constitutional acts is called the Constitution. Although the Constitution is the central constitutional act, the Slovak constitutional order does not contain an eternity clause and so the relationship between different constitutional acts and different constitutional provisions is subject to balancing without being per definition in a hierarchical relationship. That means the position of FRCA within the Slovak legal order would be the same if it were enacted as an amendment to the Constitution as it currently possess as a special constitutional act. Constitutional acts (and amendments) require three-fifth majority of all members of the Parliament (Art. 84/4 of the Constitution), while ordinary statutes require simple majority (Art. 84/2 of the Constitution). Ordinary statutes must be in compliance with the Constitution, constitutional laws and international treaties to which the Parliament has expressed its assent and which were ratified. The Slovak Constitutional Court exercises both an abstract review and concrete review. It decides on conformity of statutes with the Constitution, constitutional laws and international treaties to which the Parliament has expressed its assent and which were ratified. The Constitutional Court also decides upon submission by the President or Government on the compliance of international treaties with the Constitution or constitutional law.
Have there been any constitutional amendments in response to the Euro-crisis or related to Euro-crisis law? Or have any amendments been proposed?
Yes – the Fiscal Responsibility Constitutional Act. Its content and adoption process was exhaustively covered in the previous sections of the report (see especially the answers to questions VII.4, VII.5, VII.16 and IX.5). The previous sections also discuss failed constitutional bill dealing with tax sovereignty (see the answer to question VI.1).
If national constitutional law already contained relevant elements, such as a balanced budget rule or independent budgetary councils, before the crisis that are now part of Euro-crisis law, what is the background of these rules?
The Fiscal Responsibility Constitutional Act was adopted in Dec. 2011 and became effective on March 1, 2012. The draft of the Act was submitted to the Parliament on Nov. 8, 2011, that is one month before the December EU Council meeting that agreed on the outline of the Fiscal Compact. The draft of the Act was prepared by an expert group composed of representatives of all parliamentary parties and published in early Oct. 2011, and was a result of talks among political parties that had begun in Dec. 2009. The works on the bill started with mapping out the fiscal rules in EU countries, but also other successful models such as one of New Zealand. For more on the political and legislative process of drafting and adopting the Act see the answer to question IX.5. Evidence show that the works on finalizing the Fiscal Responsibility Constitutional Bill were done in view of the Fiscal Compact negotiations. No changes on the constitutional level have been made after the Fiscal Compact was signed and ratified (the BBR and deficit rules were implemented in the form of an ordinary statute and there are no intentions to anchor these rules in the constitutional law). Regarding the Six-pack legislation, it was enacted at the time the Fiscal Responsibility Constitutional Bill was being finalized and is reflected in the bill. Based on this legislative history, it can be concluded that the constitutional law have been changed in reaction to the Eurocrisis and with account to Eurocrisis law. The requirement of Art. 3/2 of the Fiscal Compact is considered fulfilled by implementation in the form of a statute (see more in the answers to the questions on the Fiscal Compact).
Purpose constitutional amendment
What is the purpose of the constitutional amendment and what is its position in the constitution?
The purpose of the Fiscal Responsibility Constitutional Act is to, first, entrench certain fundamental fiscal rules in the legal system (mainly debt brakes and transparency rules), and second to create competences and obligations for public authorities that would otherwise being prevented by other constitutional provisions (for instance by rights of territorial self-government) or constitutionally problematic (e.g. corrective mechanisms within the debt brakes system such as confidence vote) or insufficient (such as independency of Council for Budget Responsibility and Committee for Macroeconomic Forecasts).
The FRCA is a separate constitutional law. All constitutional laws (including the Constitution) are of equal legal force, a conflict is resolved mostly through classic continental law techniques such as lex posteriori derogat priori, lex specialis derogat generali etc., and through a balancing test.
Relationship with EU law
Is the constitutional amendment seen as changing the relationship between national and European constitutional law?
No such discussion emerged. There was a wide consensus on these changes among political parties as described mainly in the answer to question IX.5 and the works on a complex fiscal reform started in Dec. 2009. Moreover, all Slovak parties supported tightening of fiscal rules, strengthening of the SGP, etc. (also the opposition to the ESFS, Greek bailouts, or ESM has been driven by arguments calling for stronger fiscal rules that would prevent these measures to be activated). In sum, the fiscal reform had been on track to a certain extent independently of the Eurocrisis law (but of course not independent of the Eurocrisis) and therefore, it can be assumed, was not understood primary as something imposed from the EU or Eurozone group and has not changed the understanding of relationship between the national and European constitutional law. In this connection, it must be noticed that there was no involvement of courts in the process, which would otherwise need to assess these questions.
Have there been changes to organic laws or other types of legislation that are of a different nature or level than ordinary legislation, in relation to Euro-crisis law or the budgetary process?
The concept of organic law is foreign to the Slovak legal system. As mentioned above, the Ministry of Finance adopted some highly technical by-laws regarding the process, content, and forms for submitting data and information by public authorities for the purposes of its fiscal responsibilities and forecasting. Most specifically the by-law of the Ministry of Finance of the SR of Nov. 22, 2012 No. MF/21513/2012-31, on the layout, content, form, term and place of submission of accounting information and data necessary for the purposes of evaluation of the budget observance by the general government. The Ministry issued also a Methodical Guidelines to the by-law MF/21513/2012-31 providing specific guidelines on the content, form, and process of submitting financial and accounting information to the Ministry for the purposes of central macroeconomic and fiscal evaluations.
Constitutional amendment and ordinary law
If ordinary legislation was adopted in conjunction with a constitutional amendment, what is the relationship between the two?
Two major statutory amendments have been enacted. The first, an amendment to the budgetary rules for general government, is intended, according to its explanatory report, to implement the Fiscal Compact. However, it implements also the Fiscal Responsibility Constitutional Act (e.g. definition and regime of expenditure ceiling). The second, an amendment to the budgetary rules for territorial governments implements, according to its explanatory report, the Fiscal Responsibility Constitutional Act. The Fiscal Responsibility Constitutional Act created a constitutional basis for changes that would not be possible via ordinary law due to a limitation in competences of some public authorities or possible conflict with other constitutional provisions (such as right to self-government or vote of confidence). Both amendments must be in compliance with all constitutional laws.
Perception source of legal change
In the public and political discussions on the adoption of ordinary legislation, what was the perception on the appropriate legal framework? Was the ordinary legislation seen as implementing national constitutional law, or Euro-crisis law?
The process of adopting both the constitutional law and ordinary laws implementing the Eurocrisis law is exhaustively described above. In the answer to the previous question I cite the explanatory reports that show that there was a mix of reason for adopting concrete provisions. That is in one bill, several provisions from different “higher sources” such as the Fiscal Responsibility Constitutional Act (national constitutional fiscal law), the Fiscal Compact, the Directive 2011/85, and provisions of various six-pack and two-pack regulations were implemented and a discussion did not follow these differences.
As mentioned repeatedly above, in the case of Slovakia, we must differentiate two groups of reforms – financial assistance and stability mechanisms on the one had, and fiscal reform on the EU and Slovak level on the other hand. In the first group of reforms, Slovakia was very critical (see mainly the answers to the questions IV.1, IV.4, IV.6 and IV.7 on the EFSF and questions VIII.1, VIII.3, VIII.6 en VIII.7 on the ESM); while the second group of reforms was supported by virtually all political parties (there were rather minor disagreements on the form of an internal reform and worries about the ability of the EU to enforce strengthened rules against big member states). The second group of reforms, consisting mainly in the six-pack (see the answers to the questions VII.3, VII.6, VII.9, VII.13 and VII.14), two-pack (section forthcoming), and the Fiscal Compact (see the answers to the questions IX.1-IX.3 and IX.5) were rather non-conflicting. This was also in compliance with the Slovak opposition to some of the elements of the first group of reforms (ESFS, ESM, Banking Union); that is if states were fiscally responsible, there would be no need for paying their debts now. Therefore, Slovakia supported the tightening of fiscal rules and their effective enforcement in general (see the answer to question IX.5). It also started its own complex fiscal reform already in Dec. 2009 and in the parliamentary elections of 2010, all politically parties called for fiscal responsibility. A commission, which had been preparing the Fiscal Responsibility Constitutional Act, which stands on the apex of the reform, consisted of representatives of all political parties and the Act was later approved unanimously in the Parliament (see the answer to question IX.5). From all the evidence in the instruments-related sections of this report, it can be concluded that the complex fiscal reform was considered a Slovak reform, that it had built primarily on a comparison of fiscal constitutions existing in 2009 in Europe and the world at large, and that Eurocrisis law rather fitted in well than that Slovakia was following requirements coming from the EU/Eurozone (see the answers to the questions III.3 and III.5). The whole different story is the first group of reforms (EFSF, ESM, Banking Union), which is considered as imposed and has been widely criticized as not fully taking into account Slovak realities and damaging the Slovak economy as a consequence (see the answers to the questions IV.1, IV.7, VIII.1, VIII.6, and section on banking union – forthcoming). However, the support to the first group of reform, the argument goes, must be given in order for Slovakia to stay in the core of the Eurozone and EU integration, because that ensures the best position for negotiations and protection of Slovak interests (see e.g. the answers to the questions VIII.3 and IX.1).
What other information is relevant with regard to Slovakia and to changes to national (constitutional) law?