La Corte di giustizia e i nuovi soggetti istituiti nel quadro dell'Unione economica e monetaria

This article evaluates whether the ECJ case law on the EMU (from Pringle, to Gauweiler, from Mallis to Ledra Advertising and other judgments) has contributed to re-balance the EU inter-institutional equilibrium, which in the past years has displayed the growing importance of Member States and of the inter-governmental method and the corresponding weakening of the non-State EU institutions and the (old) “community method”. The author criticises the unwillingness of the ECJ to include the EMS and its acts under its judicial review; he also considers unsatisfactory the solutions offered by the ECJ as regards both the accountability of EBC and the Commission within the EMS framework, and the solution offered by the ECJ to use merely a (theoretical) recourse to the non-contractual liability of the EU institutions (and of Member States) when acting within the EMS. The same criticism is expressed for the position expressed by the ECJ to consider non-justiciable the Euro Group activity, since its role within the EMS is substantially different and more penetrating than that envisaged in the relevant Protocol on Euro Group. The author proposes some arguments to overcome the present ECJ position (in particular, by realizing that EMS is or has become the implementing tool of article 136.3 TFEU, thus falling within the scope of application of EU law) and invites the Court to take a more courageous stance for the sake of the rule of law within the Union and to avoid that the shift in favour of inter-governmentalism becomes the rule, and not the exception, of EU governance.