A number of member states have received direct financial assistance through balance of payments support (Hungary, Rumania, Latvia), bilateral agreements/IMF (Greece), the temporary emergency funds/IMF (Ireland, Portugal, Greece), and the permanent emergency fund (Spain and Cyprus).
Several member states have (also) indirectly benefited through the Securities Markets Programme (SMP) created in May 2010, a bond-buying programme of the European Central Bank that was replaced in September 2012 by the Outright Monetary Transactions (OMT) programme (Greece, Ireland, Portugal, Italy, Spain).
If relevant, describe the political, economic and legal situation leading up to the moment of the formal request of direct financial assistance.
Regarding this issue, see the answer to Question I.1 and, in particular, points 11-13 in the section on “Economic and Financial Crisis Governance in Spain (January 2008- November 2012)”.
Describe the public and political debate during the negotiations on the financial assistance instruments, notably the Memorandum of Understanding (MoU) and Financial Assistance Facility Agreement, in particular in relation to the implications for (budgetary) sovereignty, constitutional law, socio-economic fundamental rights, and the budgetary process.
As for the debate in the Congreso de los Diputados, on 20 June 2012, in a plenary session of the Congreso, the Grupo Socialista presented an interpelación (a formal question) to the Government on its position regarding Spain’s request for financial assistance. In the motivation of the question, the Grupo Socialista stressed that the Government should inform the Congreso about the details of the financial assistance that Spain would be receiving. In particular, the Grupo Socialista referred to the fact that it was essential: (a) to make sure that the bailout was not ultimately paid by the working/middle classes; (b) to set the conditions so that the public resources would go back to the public purse at the end of the process; (c) to make sure that the assistance received by the banking sector would facilitate the access to credit for families and companies; (d) to make sure that people having difficulties in paying their mortgages or who had invested in preferred participations would profit from the financial assistance and; (e) to make sure that the whole process was transparent (i.e. the measures adopted and the final destination of the resources). In her defence of this interpelación, María Soraya Rodríguez Ramos, member of the Grupo Socialista, emphasised the confusion (and the consequent lack of credibility) that the Government had created regarding Spain’s financial assistance. In this sense, she recalled that on 28 May the Government had explained that Spain would not be receiving financial assistance; on 9 June it stressed that Spain would obtain a very favourable loan (without conditions attached to it); and finally on 18 June it stressed that the bailout would be very harmful for Spain, because it would contaminate Spain’s public debt with private debt (that of the banking sector). Besides, Rodríguez Ramos asked the Government to negotiate the longest possible grace period for the loan, and also that the interests would not be counted in Spain’s public deficit as long as the country is falling into excessive deficit. The MP also regretted that the financial assistance would be given to the State, instead of being directly received by the banking sector. In his response to the interpelación, Cristóbal Montoro Romero, Minister of Finance and Public Administration, considered the intervention of Rodríguez Ramos as demagogic and populist, since the MP had said that the Government was creating confusion regarding the financial assistance. The Minister highlighted that the assistance would not be a EU invasion of Spain, but rather an example of how Spain can use the tools provided by the EU to get out of the crisis. Later, Rodríguez Ramos replied that the Minister had not answered to any of her questions, and she complained that the Government should be much more transparent towards the Parliament. In particular, she stressed that, since the Spanish people would be paying the bailout, they have a right to be informed of its details and about the conditions attached to it. In his final intervention, Montoro Romero denied the fact that the Government was not transparent, and criticised the Grupo Socialista, and especially Rodríguez Ramos, for not understanding essential economic concepts, and thus downgrading the level of the parliamentary debate. Besides, in the same plenary session of the Congreso, Álvaro Anchuelo Crego, member of Unión Progreso y Democracia, asked Montoro Romero how the Government planned to avoid the bailout turning the banking sector crisis into a public debt crisis. To this question, he added that the Government should not lie and should admit that Spain was being bailed-out. In his response, the Minister only referred to the second of these issues, that is, he explained that Spain was not going to be bailed-out.
Later, on 26 June 2012, in a plenary session of the Congreso, the Grupo Socialista defended a moción (a motion) regarding the response of the Government to the interpelación presented by the same parliamentary group some days earlier (on 20 June). In his defence of the moción, Tomás Valeriano Gómez Sánchez, member of the Grupo Socialista, explained that he considered a disgrace for the democratic system that the President of the Government had not appeared in the Congreso to speak about Spain’s bailout. In this sense, one of the goals of the moción was to ask the President to do so. Besides, the moción also aimed at the creation of an investigation, control and follow-up committee regarding the bailout in the Congreso. The MP added that it was not possible to leave outside the control of the Parliament, which represents people’s sovereignty, one of the most important economic and social events in Spain’s recent history. Later, the rest of parliamentary groups had a chance to defend their positions regarding the moción, as well as to present amendments to it. After the positions were defended, the moción vas voted and rejected. As for the positions of the different parliamentary groups:
1. Francisco Jesús Jorquera Caselas, member of the Grupo Nacionalista Galego, expressed that his parliamentary group would support the moción, and he stressed that the so-called European financial assistance is in fact an intervention of Spain, which will lose its fiscal and banking sovereignty.
2. Teresa Jordà I Roura, member of Esquerra Republicana de Catalunya, expressed the support of her group to the moción, but she added an amendment: the investigation, control and follow-up committee should include an investigation on those who are responsible for the financial crisis, like it was done in the US or Island.
3. Álvaro Anchuelo Crego, member of Unión Progreso y Democracia, explained that his group also considered that an investigation should be carried out in order to ascertain who was responsible for the financial crisis.
4. Pedro María Azpiazu Uriarte, member of Partido Nacionalista Vasco, expressed that his group would support the moción, and that the lack of transparency of the Government regarding the bailout was unacceptable. He also added that it is dangerous not to call things by their name, and that the so-called financial assistance should be called a bailout.
5. Alberto Garzón Espinosa, member of Izquierda Unida, highlighted that the financial assistance is not a bailout, but a robbery and an extortion to be suffered by Spanish workers.
6. Josep Sánchez I Llibre, member of Convergència I Unió, criticised the proposal of the Grupo Socialista to create a committee regarding the bailout, because he stressed that it was an electoral strategy, rather than a real proposal.
7. Vicente Martínez-Pujalte López, member of Grupo Popular, criticised the Grupo Socialista for putting obstacles to the task of the Government instead of trying to help it in order to get out of the crisis.
Regarding the debate in the Senado relating to the negotiation process of the financial assistance for Spain, it is important to mention the following MP’s interventions, which took place in different plenary sessions of the Senado in June and July 2012:
1. On 19 June 2012:
· Jordi Guillot Miravet, member of Iniciativa per Catalunya Verds (ICV), asked the Government about the conditionality attached to the financial assistance. In particular, the MP wanted to know whether the VAT would go up, and whether the retirement pensions and the unemployment benefits would be affected. In her response to the intervention of Guillot Miravet, Josefa Luzardo Romano, member of the Partido Popular (PP), did not give an answer to these concerns.
· Maria de los Ángeles Marra Domínguez, member of the Partido Socialista Obrero Español (PSOE), highlighted the fact that the bailout would undermine the credibility of the Spanish economy.
2. On the 21 June 2012:
· José Manuel Marsical Fuentes, member of Izquierda Unida (IU), in response to Araceli Peris Jarque, member of the Partido Popular (PP), who had called him “idealist”, stressed that instead of an idealist he is a realist, because idealism is in fact thinking that the financial bailout will not have an effect in the lives of Spanish citizens.
· Carmen Méndez González-Palenzuela, member of the Partido Socialista Obrero Español (PSOE), criticised the Government for: (a) its lack of will to reach agreements with other political parties, trade unions, etc.; (b) having complained (when they were in the opposition) that the Government was too concerned with satisfying the requirements of “foreigners”, and now accepting the European financial assistance.
3. On 17 July 2012:
· José Montilla I Aguilera, member of the Partido Socialista Obrero Español (PSOE), strongly criticised the Government for the lack of transparency regarding the financial assistance. The MP literally said that the Government had stolen the tasks of the Parliament, and that the financial assistance for Spain had perhaps been debated in the Dutch Parliament, but not in the Spanish one.
The public debate on the negotiation process of the financial assistance for Spain was very much in the line of the political debate expounded above. In this sense, the main concern was the lack of transparency of the Government regarding the negotiations and thus the confusion regarding the details of the financial bailout. Some examples of this are the following articles:
· “El peligro del eufemismo” (“The danger of eufemisms”), El País, 18/06/2012
· “Por qué es una intervención” (“On why it is a bailout”), El País, 12/07/2012
· “Los documentos del rescate que el Gobierno ha ocultado a España” (“The documents on the bailout that the Government has hidden from Spain”), El País, 19/07/2012
What is the status of the financial assistance instruments in the national legal order (political agreement, international treaty, etc.)?
The Memorandum of Understanding on Financial-Sector Policy Conditionality, signed in Brussels and Madrid on 23 July 2012; and the Financial Assistance Facility Agreement, signed in Madrid and Luxembourg on 24 July 2012 are international agreements under Spanish law. This is so since they were published (together) on 10 December 2012 Boletín Oficial del Estado (BOE).
In this sense, Article 96(1) of the Spanish Constitution establishes that international treaties, which have been validly celebrated, will be part of the Spanish legal order once they are published in the BOE. Besides, it is important to recall that Articles 93-94 of the Constitution distinguish between three different types of international treaties/agreements, depending on their subject matter. Linked to the category under which a given treaty is classified, the Constitution enshrines a certain procedure in order to incorporate the treaty into the national legal order.
Transposition national legal order
Considering the status of the financial assistance instruments, what procedure does the constitution prescribe for their adoption/transposition into the national legal order?
In the case of the MoU and the Financial Assistance Facility Agreement, the Government considered these agreements to fall into Article 94(2) of the Constitution [i.e. treaties/agreements on subject matters different than those regulated in Articles 93 and 94(1)], and thus treaties which only require the Government to inform the Parliament after their conclusion. This explains the lack of a parliamentary debate on the content of these agreements and the consequent criticisms by many political parties to the Government for its lack of transparency as regards the details of what had been agreed with the European authorities.
An example of this discontent is the question that Gaspar Llamazares Trigo, member of Izquierda Unida, posed to the Government regarding the lack of transparency in relation to the conditions agreed upon in the MoU, which had not been made public in Spanish. In its written answer to this question, the Government merely stated that the MoU could be found both in Spanish and in English in the website of the Ministry of Economy and Competitiveness.
What is the actual role of Parliament with regard to the adoption/transposition into the national legal order of the financial assistance instruments?
Describe the relevant content of the financial assistance instruments.
While the Memorandum of Understanding on Financial-Sector Policy Conditionality (MoU) mainly establishes the conditionality linked to the financial assistance for Spain, the Financial Assistance Facility Agreement is concerned with the technicalities regarding the operationalization of the assistance.
As for the MoU, one could consider that the instrument refers to three different types of conditions: (a) conditionality for the banking sector (e.g. guidelines for the recapitalization and restructuring of banks, and adoption of measures in order to free Spanish citizens from part of the costs of the restructuring process), (b) conditionality regarding the framework for the operation of the banking sector (e.g. adoption of measures in order to ensure the independence of the Spanish Central Bank from the Ministry of Economy), (c) conditionality relating to macroeconomic imbalances (e.g. compromise to ensure the attainment of deficit targets, and introduction of measures in fields such as the taxation system).
Besides the conditionality, the MoU also refers to: (a) the objectives of the financial assistance (e.g. “to increase the long-term resilience of the banking sector as a whole, thus, restoring its market access”), (b) the program through which the financial assistance will be put into effect (i.e. once the ESM is in place, the assistance will be operationalized through the new Mechanism) and, (c) the supervision of such program (e.g. the European Commission will verify if the conditions are satisfied by sending missions to Spain and by asking for reports).
Finally, as mentioned above, the Financial Assistance Facility Agreement determines those aspects that are essential in order to operationalise the financial assistance (e.g. issues regarding the payments, situations of non-compliance, legislation applicable, etc.).
What legal changes, if any, had to be made to accommodate ‘troika’ review missions, post-programme surveillance missions, etc?
Section VIII of the MoU establishes that “the European Commission, in liaison with the ECB and EBA, will verify at regular intervals that the policy conditions attached to the financial assistance are fulfilled”. One of the expressions of this monitoring is the right of the abovementioned authorities to conduct inspections in any financial institution, which is receiving the assistance, to control the compliance with the conditions. In this sense, the so-called “hombres de negro” (“men in black”) have visited Spain in three occasions: in October 2012, February 2013 and May 2013. It is important to stress that no legal changes have been introduced in the Spanish legal order to accommodate these missions.
As for the political debate regarding the general role of the “troika”, and in particular its inspections in Spain, the emphasis has been repeatedly put (either directly or indirectly) on the fact that they constitute an attack on the sovereignty of the State. In this sense, the following interventions of three MP are illustrating:
(1) On 26 July 2012, Jesús Iglesias Fernández, member of Izquierda Unida in the Senado, expressed that the “troika” was intervening Spain de facto by imposing certain measures in order to avoid an intervention de iure. However, according to the MP, these measures are perhaps even more oppressive than the intervention de iure in itself.
(2) On 27 August 2012, Enrique Álvarez Sostres, member of Foro Asturias in the Congreso, asked the Government whether the MoU contemplated the action of the “men in black”.
(3) On 4 June 2013, José Montilla Aguilera, member of the PSOE in the Senado, highlighted the fact that Spain was subject to foreign vigilance.
In the same line, the public debate on the “troika” missions has been concerned with the attack on Spain’s sovereignty. In this sense, during the negotiations on the financial assistance, the issue as to whether the “men in black” would be coming to Spain was considered essential in order to assess whether the assistance was in fact an intervention/bailout. See, for instance, the article that El Público published on 10 June 2012, entitled “Sí vienen los hombres de negro” (“Indeed, the men in black are coming”):
Case law international instruments
Have there been direct or indirect legal challenges against the financial assistance instruments before a national (constitutional) court?
Case law implementing measures
Is there a (constitutional) court judgment on national policy measures adopted in relation to the Memoranda of Understanding?
There is no judgement/pending judgement by the Constitutional Court or by any other Spanish Court in relation to the national “implementation” of the MoU. However, given that the latter invited Spain to implement its labour market reforms, the cuestión de inconstitucionalidad presented by a judge of the Labour Court no. 30 of Madrid regarding some articles of the February 2012 labour market reform could be considered as a case relating to national policy measures required by the MoU. The same holds true for the recurso de inconstitucionalidad, which was presented in October 2012 by the Grupo Socialista and the Izquierda Plural. This appeal concerns9 articles of the February 2012 labour market reform, which are considered to be unconstitutional. As for the former, on 16 October 2012 the Constitutional Court declared inadmissible the cuestión de inconstitucionalidad. On the contrary, regarding the latter, the 30th of October 2012 the Constitutional Court declared the appeal admissible. However, the judgement is still pending.
Bond purchases ECB
Describe the political, economic and legal situation leading up to the moment where the European Central Banks started buying government bonds on the secondary market (through the Securities Markets Programme, SMP).
There are two fundamental dates regarding announcements of the ECB on its intention to buy (Spanish) bonds: August 2011 and September 2012. As for the former, the ECB agreed on buying (and ultimately did) Government bonds from Spain through the Securities Markets Programme (SMP), since the risk premium of the State had reached a historic record level (over 400 points) and was threatening a stock market crash.
In particular, on 7 August 2011 Jean-Claude Trichet, then President of the ECB, published a statement in which he explained that the Governing Council of the ECB welcomed the fiscal and structural reforms by the governments of Spain and Italy, and was willing to “actively implement its Securities Markets Programme”.
Regarding the latter bond-buying plan of the ECB, on 6 September 2012 the Bank published the “technical features” for the operation of the new Outright Monetary Transactions (OMT). For instance, the press release stressed the fact that the OMT would be strictly subject to the “conditionality attached to an appropriate European Financial Stability Facility/European Stability Mechanism (EFSF/ESM) programme”, which meant that no national bonds would be bought by the ECB, unless the MS concerned was being bailed-out. Besides, the OMT would consist of open-ended, unlimited buying of bonds. According to Mario Draghi, the aim of the OTM is to address distortions in government bonds markets based on unfounded fears. As stated by The Guardian, “the scheme is aimed at depressing the costs of borrowing for Spain and Italy and countering the risks of fragmentation of the eurozone and the unravelling of the single currency”.
In this sense, with Spain’s risk premium around 450 points in September 2012, the press of the country considered Spain to be one of the most likely addresses of the OMT. However, Draghi clearly stated that Spain’s financial bailout of July 2012 was not enough for the ECB to buy Government bonds through the OMT, since the MoU agreed in that occasion does not determine strict macroeconomic objectives and a total conditionality.
In a speech given on 4 October 2012 in Slovenia, the President of the ECB clearly stated that the Bank would only buy Spanish bonds if the Government requested a bailout and agreed to conditions. Later, in February 2013, Draghi recalled that the ECB would only consider buying Spanish bonds if there were major problems in the transmission of monetary policy and/or if Spain was being bailed-out.
Conditionality bond purchases ECB
What national policy measures have been requested by the ECB in exchange for the acquisition of government bonds on the secondary market? How have these requests been subject to debate in light of their implications for (budgetary) sovereignty, constitutional law and the budgetary process?
As stated in question X.10, there are two fundamental dates regarding announcements of the ECB on its intention to buy (Spanish) bonds: August 2011 and September 2012. However, only the former ultimately led to the ECB effectively buying Spanish bonds through the SMP. In this sense, it is important to stress that it was precisely the lack of a strict conditionality attached to the SMP what urged the ECB to agree on a new programme: the OMT. As published by Reuters in September 2012, “the ECB was hurt last year when it bought Italian and Spanish bonds, only for Italy’s then-prime minister, Silvio Berlusconi, to go back on the reform promises he had made to get the ECB to step in just days after he made the commitments. The ECB has learned from the Italian experience – hence the tough conditions attached to any bond buying under the new plan”.
However, some aspects of the Statement by Jean-Claude Trichet on 7 August 2011 on the activation of the SMP could be regarded as ECB’s requests affecting national policy measures, despite their non-binding character. For instance, the commitment to agreed fiscal targets, the implementation of all decisions taken at the euro area summit, and the implementation of the national fiscal and structural policies’ reforms.
What other information is relevant with regard to Spain and financial support?
No other relevant information.