The European Monetary Union: A Hard Test for the Rule of Law Within the EU Legal System

This article analyses the impact of the so-called euro crisis on the rule of law value. It moves from the lack of a serious legal insight of the EMU weaknesses before the euro crisis and examines relevant ECJ case-law from Pringle to Gauweiler, including the reply recently offered by the German Constitutional Court to the ECJ on the legality of the OMT programme launched (and not implemented yet) by the European central Bank in 2012. The critical reading of the case-law serves to highlight serious tensions they create in respect of many EU legal pillars: the principle of conferral of powers, the ERTA judgment doctrine, the boundaries between economic and monetary policies and the respect scope of powers of Member States and EU institutions, as well as the extent of application of fundamental rights of the individuals to the financial stability mechanisms. In this way, it is argued that, if bending of rules was anyway inevitable given the flaws in the EMU legal structure, maybe a more far-reaching option for the ECJ would have been to interpret the ESM Treaty as a sort of implementing measure of article 136.3 TFEU, in contrast to what was actually established by Pringle. In this perspective, another blow in the EU legal system deriving from the euro crisis, is the confrontation it has determined among several Member States’ supreme courts, and the consequent arising of different problematic approaches even regarding the constitutional traditions common to the Member States. In the end, while appreciating the attempts made by the ECJ, especially in Gauweiler, to help rescuing the EMU, and hence the EU, in particular through the strengthening of the ESCB/ECB, the author advocates a reform of the treaties also as a tool to heal the weakening of the fundamental value of the rule of law, which the euro crisis has brought about, and in this way possibly reconcile the tensions that have emerged among the constitutional courts of Member States.