Prior to 2010, loan assistance to States was made primarily via bilateral agreements (to Latvia, Hungary, Romania, 1st round of Greek loan assistance).
The European Financial Stabilisation Mechanism (EFSM) and the European Financial Stability Facility (EFSF) are two temporary emergency funds, both resulting from the turbulent political weekend of 7-9 May 2010. On May 9, a Decision of the Representatives of the Governments of the Euro Area Member States was adopted expressing agreement on both funds.
The EFSM is based on a ‘Council regulation establishing a European financial stabilisation mechanism’ of May 11, 2010 adopted on the basis of article 122(2) TFEU and therefore binding on all 27 member states of the EU.
The EFSF is a special purpose vehicle created under Luxembourgish private law by the 17 member states of the Eurozone. The EFSF Framework Agreement was signed on June 7, 2010. On June 24, 2011, the Heads of State or Government of the Eurozone agreed to increase the EFSF’s scope of activity and increase its guarantee commitments.
(http://www.efsf.europa.eu/attachments/20111019_efsf_framework_agreement_en.pdf and http://www.efsf.europa.eu/attachments/faq_en.pdf)
What political/legal difficulties did Spain encounter in the negotiation of the EFSF and the EFSM, in particular in relation to (budgetary) sovereignty, constitutional law, socio-economic fundamental rights, and the budgetary process?
The EFSF and the EFSM were agreed at the Eurogroup extraordinary meeting of 7-9 May 2010. It must be kept in mind that Spain held the Presidency of the EU at the time. This resulted in an agreement between the then governing party, Partido Socialista Obrero Español and the other major political parties (Partido Popular, Convergencia I Unió and Partido Nacionalista Vasco)setting the priorities of the Spanish Presidency as well as the duty to support the Spanish Government in pursuing them. In this light, it is not a surprise that the EFSF and the EFSM found little political or legal difficulty when debated in the Spanish Parliament.
Under the Spanish legislative framework, accounts on the EU legislative agenda and the position of the Spanish government thereof are to be given before a parliamentary commission. Explanations from the President vis-à-vis the Congreso de los Diputados(lower chamber) in plenary session are given ex postwhen requested by the President himself. Previous consent from the Congreso de los Diputados as well as the Senado(upper chamber) is only needed in case of the ratification of international treaties. Therefore, most of EU legislation is briefly discussed at the Parliamentary Joint Commission for the European Union before being passedand debated afterwards in front of the Congreso de los Diputado, while often omitting discussion at the Senado.
Since neither the EFSM nor the EFSF were dealt with during the meetings of the Parliamentary Joint Commission for the European Union on the weeks preceding the Eurogroup meeting of 7-9 May 2010, little information exists surrounding the negotiation of these instruments and the difficulties arisen in the process, if any. The only statements in this regard were voiced by President José Luis Rodríguez Zapatero at the Congreso de los Diputados a month before the adoption of the EFSM and the EFSF, when he stated that “member states are taking the steps needed at the national level in order to contribute towards a support mechanism. (…) This is the position that the Spanish government defended from the first moment, because it is the only one truly consistent with a monetary union”. Mariano Rajoy, head of Partido Popular (the main party of the opposition at the time) replied that Spain could not really afford to go into more debt yet he supported the measures in order to defend the Euro.
Few days after the establishment of the EFSM and the EFSF, President José Luis Rodríguez Zapatero appeared before the Congreso de los Diputados in order to inform about the Eurogroup extraordinary meeting that had just taken place. Zapatero exposed thatSpain, as the rotating president of the EU, had contributed to the creation of the European stabilisation mechanisms, whichincluded “the mobilisation of €750,000 million, 250,000 of which were to be provided by the IMF, 60,000 by the Commission and the rest through a financial instrument guaranteed by all the eurogroup”.Mr Mariano Rajoy received with cautionthe measures approved by the European Union while recognising that “in the short term will help to bring stability to the markets, as shown by the large increase in the stock-market today after last week’s downfall.”Mr Rajoy then added that the most important is that Europe has sent its members the message that “they will not let them drop”. Yetthe rescue ofthe economies that could be in danger involves the imposition of “homework” by Brussels to the member states as well asthe monitoring of their evolution. “Now he (Zapatero) has to deliver what Europe says”, said Rajoy. “We will help with what Zapatero wants because that’s what we have been asking for the last two years,” he concluded. In the same parliamentary sitting, Josu Erkoreka from Partido Nationalista Vasco stated that the creation of these instruments could be understood as circumstantial measures linked to the Greek crisis, but also as the embryo of a common fiscal policy. Erkoreka saw the latter as a positive step, given that he hoped for a fiscal federalist structure for Europe that could avoid similar crises in the future.
Since the EFSF was considered as an international agreement under Spanish national law, it needed the approval of the Congreso de los Diputados as well as the Senado. As such, after the Foreign Affairs Parliamentary Commission produceda report on the EFSM, the text was submitted to both Congreso and Senado for its authorizationon 28 June 2010. In both sittings of the Congreso and the Senado there was no parliamentary discussion surrounding the voting of the EFSM. Only at the Congreso did Gaspar Llamazares (from the left-wing party IzquierdaUnida) voice its intention to vote against the instrument. The voting outcome was 343 votes in favour, 2 against and 4 abstentions at the Congreso de los Diputados. At the Senado, no vote was needed as the ratification of the EFSM was unanimously authorised.
Following the approval of the agreement establishing the EFSF in both chambers, the text of the agreement was published in the Official State Bulletin on 11 July 2011. The immediate implications of the EFSF at national legislative level was the approval of Real Decreto Ley (Royal Decree-Law) 9/2010, of 28 May, which authorizes the Government to grant guarantees to certain financing transactions under the EFSF of the Eurozone Member States. The object of this Real Decreto Ley was the authorization by the Government for guaranteeing, up to a maximum of €53,900 million, the financial obligations arising from financing operations carried out by the EFSF since its inception and until December 31, 2013.Again, only Mr Llamazares Trigo from Izquierda Unida expressed his intentions to vote against the mechanism during the voting session.
The use of a policy instrument such as the Real Decreto Ley deserves some remarks. The Real Decreto-ley is a legal norm with the full force of law that emanates from the Government and itcan only be promulgated in case of extraordinary and urgent necessity. In order to avoid misuse by the Government, the Real Decreto Ley has got three limitations: (a) it can only be used in case of “urgent need” (although the Government is the one deciding when such need exists), (b) its content cannot affect the State institutions, citizens’ rights and freedoms, the configuration of the Spanish regions or the electoral law, and (c) the existence of the “urgent need” behind the Real Decreto Ley needs approval from the Congreso de los Diputados within a maximum of thirty days in order to be converted into law, otherwise the Decreto Ley expires. The Congreso cannot modify the text of the Real Decreto Ley, only approve it or reject it as a whole. This makes the process much faster while substantially avoiding parliamentary debates. In the case of the EFSM, the Government at the time appreciated that the situation of volatility and uncertainty in the financial markets required the implementation of urgent measures that would allow restoring the confidence of financial agents in the economies of the Eurozone. The use of theReal Decreto Ley, while restricting the ability of the MPs to discuss its content, ultimately allowed the implementation without delay of the EFSF.
Additionally, the approval of the EFSF followed implications for the budgetary process. It resulted in the need to amend Article 54.1 and 54.2 of Law 26/2009, of 23 December on the State Budget for 2010 (and in conformity with Article 114 of Law 47/2003, of 26 November on General Budget) in order to increase the maximum amount of the guarantees to be granted by the Government for the fiscal year 2010 (from €42,000 million originally established to the €53,900 million required by the EFSM to Spain for its 12,24% share).
Entry into force
Article 1(1) EFSF Framework Agreement provides that it will enter into force if sufficient Eurozone member states have concluded all procedures necessary under their respective national laws to ensure that their obligations shall come into immediate force and effect and provided written confirmation of this. What does this procedure look like in Spain and in what way does it involve Parliament?
Being considered as an international agreement, the procedure followed by the Spanish laws in order to ensure that the EFSF obligations were coming into immediate force was the following:
a) It was firstly authorised by the Consejo de Ministros(Cabinet or Council of Ministers) in its meeting of 4 June 2010. The Council authorised the signing of the Framework Agreement and to proceed to its ratification.
b) Once authorised by the Consejo, the EFSF Framework Agreement was sent to the Spanish Parliament on 16 June 2010. The Congreso commanded a Dictamen (Decision) by urgent procedure to the Comisión de Asuntos Exteriores (Foreign Affairs Commission).Following the procedures foreseen in Article 97 of the Congress’rules of procedure, the Framework Agreement was published in the Official Journal of the Cortes Generales on the same date.
c) PursuantArticle 94.1 of the Spanish Constitution (which states that the giving of consent of the Government to enter any commitment by means of treaty or agreement shall require prior authorization of the Spanish Parliament), the text was submitted to both Congreso and Senado for its authorization, being passed with a vast majority in both chambers.
Member states are obliged to issue Guarantees under the EFSF. What procedure was used for this in Spain? What debates have arisen during this procedure, in particular in relation to the implications of the guarantees for (budgetary) sovereignty, constitutional law, socio-economic fundamental rights, and the budgetary process?
The procedure used in Spain in order to issue Guarantees under the EFSF was the amendment of Article 54.1 and 54.2 of Law 26/2009 on the State Budget for 2010with the purpose of increasing the amount of guarantees that can be granted by the Government.
The new Article 54.1of the State Budget for 2010 stated that: “The maximum amount of the securities given by the State cannot exceed 95,900 million euro” (own translation). Previously, this maximum amount was 42,000 million euro. Article 54.2 then stated that from this maximum amount “€53,900 million would be to ensure the economic obligations claimable to the society called European Financial Stability Facility.”
Little debateat the Parliament surrounded the modification of the 2010 Budget Law. This is so because as mentioned in Question IV.1 the Budget Law was modified by means of a Real Decreto Ley, a legislative instrument reserved for situations of “urgent need”. The Real Decreto Ley is enacted by the Executive and enters into force immediately afterwards. Although the Congreso de los Diputados must ratify or reject it within thirty days, this applies to the text as a whole: no modifications can be introduced, which often results in a mere voting session. Ultimately, the Real Decreto Ley amending the 2010 State Budget was overwhelmingly ratified at both the Congreso and the Senado (see Question IV.1), with the only significant declaration being that of Gaspar Llamazares (from Izquierda Unida) expressing that his group would vote against the Decreto Ley.
What political/legal difficulties did Spain encounter during the national procedures related to the entry into force of the EFSF Framework Agreement and/or the issuance and increase of guarantees?
The Spanish government did not experience any particular legal or political difficulties in view of the entry into force of the EFSF or the consequent increase of guarantees that needed the 2010 State Budget. Since Spain held the Presidency of the EU at the time and all major political parties closed ranks in order to preserve an image of unity, this lack of criticism hardly comes as a surprise. Most EU measures adopted back then lacked salience in the public discourse, and the recourse to the Real Decreto Ley (see Question IV.1) in order to implement the EFSF further discouraged any chance of deep parliamentary discussions.
Is there a (constitutional) court judgment about the EFSM or EFSF in Spain?
There is no court judgement about the EFSF or the EFSM in Spain.
What is the role of Parliament in the application of the EFSF, for example with regard to decisions on aid packages (Loan Facility Agreement and Memorandum of Understanding) and the disbursement of tranches, both of which need unanimous approval by the so-called Guarantors, i.e. the Eurozone member states?
The role of the Spanish Parliament in the application of the EFSF was two-fold: (i) the ratification of an international treaty (establishing the EFSF) and (ii) the modification of domestic legislation in order to increase the guarantees issued by the State. In both cases, the two Parliament chambers (Congreso and Senado) had to give their approval.
(i) Approval of theEFSF: Article 94(d) of the Spanish Constitution establishes that the giving of the consent of the State to enter any commitment by means of treaty or agreement shall require prior authorisation by Congreso and Senado in cases that imply financial liabilities for the Public Treasury. The EFSF belonged to this category: in order to contribute with 53,900 million euro in guarantees, the Spanish Treasury had to issue bonds over the maximum established in the 2010 Budget Law. The 21 April 2010 the Spanish President at the time, José Luis Rodríguez Zapatero, seized its appearance at the Congreso to request that the authorisation of this framework agreement be made as quickly as possible given the urgency of the circumstances. Both Congreso and Senado gave their consent to the signature of the EFSF swiftly, as explained in Question IV.2. An enormous majority of the MPs supported the assistance to Greece for a number of reasons, remarkably the fact that the bail-out was carried out during the Spanish presidency, feelings of solidarity towards Greece, the perception that the bail-out was ultimately guaranteeing the survival of the Euro and that the assistance would also render Spain monetary interests (unless Greek default). Once the EFSF is agreed upon at the national level, the Spanish Parliament does not bear any significant role in its practical functioning (i.e. loan agreements or memoranda of understanding with the assisted countries). At parliamentary effects, these events are treated as ordinary EU legislation and hence the EU Parliamentary Commission and the plenary of the Congreso are mainly informed ex post.
(ii) Modification of Spanish legislation: The increase of guarantees that could be issued yearly by the Public Treasury needed the modification of the Budget Law of 2010. José Luis Rodríguez Zapatero also informed of this during the Congreso sitting of 21 April 2010. This reform was made through a Real Decreto-Ley, a measure of immediate effect but that needed later approval from the Congreso and the Senado. If, in the functioning of the EFSF, the issue of further guarantees were needed from Spain (because the capital of the EFSF were increased), this would most likely result in a similar reform of the yearly budget. Irrespectively of the legislative method used for the budget reform, the approvals from both the Congreso and Senado would be needed in the process.
What political/legal difficulties did Spain encounter in the application of the EFSF?
The Spanish Government did not encounter any relevant political/legal difficulties in the application of the EFSF since it was supported and approved by a vast majority of the political forces in the Parliament.
In case Spain participated in providing funding on a bilateral basis to other EU Member States during the crisis, what relevant Parliamentary debates or legal issues have arisen?
On May 2010, the Eurogroup agreed to push through an international aid package of 110 billion euro for Greece for the period 2010-2012, with 80 billion euro coming from the Eurozone. The total contribution of Spain to the Greek Loan Facility amounted to 9,794,387,450 euro. Such contribution needed (i) the signature of an agreement between the representatives of the Member States of the eurozone, on the one hand, and Greece, on the other one, and (ii) the implementation of this agreement into domestic law, namely through the reform of the Budget Law of 2010.
(i) Loan Agreement with Greece: As an international treaty with an impact on public finances (Article 94(d) of the Spanish Constitution), the Spanish participation in the loan needed discussion and approval by the Congreso and the Senado. The discussion at the Congreso took place on 2 December 2010. In this sitting, Gaspar Llamazares from Izquierda Unidacriticised the loan for “serving more to feed the markets and the financial speculation against the sovereign debt of the member states, than to save these countries”. Nadal Belda from Partido Popular announced that his party would vote for the agreement, an added that the loan would help to calm down the markets. At the end of the sitting the vote of the agreement took place: it was approved by 322 votes in favour, 4 against and 2 abstentions. At the Senado there was no discussion surrounding the loan agreement, which was approved on 14 December 2010 by assent.
(ii) Implementation into domestic law: The credit destined to the Greek Loan Agreement needed the increase of the Spanish Budget Law for 2010. The reform of the 2010 Budget Law was made by means of a Real Decreto-ley, a legislative instrument enacted by the executive with immediate effect but that needs later approval by the Congreso de los Diputados (see Question IV.1).Real Decreto-ley 7/2010 of 7 May created a “Fund for Support to the Hellenic Republic” and authorised an extraordinary credit of 9,794,387,450 to this end. According to the same Decreto-ley, the Spanish contribution to the Greek loan would be financed by means of governmental bonds. The voting session for the Real Decreto-ley 7/2010 that took place on 20 May 2010 was one of intense discussion. Barkos Berruezo from Nafarroa Bai expressed her agreement with the Greek bailout, but criticised the harsh conditions that the bailout involved. Fernández Dávila from Bloque Nacionalista Galego joined this opinion, adding that the bailout was linked to a major readjustment programme withclear anti-social implications, views also shared by Ridao i Martín from Esquerra Republicana de Catalunya and Herrera Torres from Catalunya Verds. Remarkably, Pedro Azpiazu from Partido Nacionalista Vasco quoted Joseph Stiglitz in noting that the paradox of lending money to Greece in the name of a political union, when a real spirit of solidarity would imply lending Greece the funds at the same rate than the member states obtain it, and not higher. Be that as it may, the Real Decreto-ley 7/2010 was approved by 321 votes in favour, 2 against and 3 abstentions.
What other information is relevant with regard to Spain and the EFSM/EFSF?
On 25 June 2012 (two years after the creation of the EFSF and half a year after its entry into force) Spain had to request financial assistance in order to restructure and recapitalise the Spanish banking sector. To this end, Spain signed a Memorandum of Understanding on Financial-Sector Policy Conditionality (MoU) with a number of policy conditions that was formally adopted on 23 July 2012. For further details, see section X of the Questionnaire.