Thread by @MarijnvdSluis

After some time away from research due to reasons and stuff, time to get back to my book-proposal. Given recent developments, I thought I'd share some thoughts on what I do.

Put simply, my research concerns the question why there is so much law in EMU. A (long) thread/

The recent judgement by the #BVerfG on the ECB is only the latest instalment of the controversial role of law for the euro. However, there is no proper account of what law exactly does for the euro, why it is so prominent, and lastly, what we may expect from law (and Courts). /2

I argue that we should pay attention to the legal form of the rules of the euro, namely their basis in the EU Treaties. This greatly affects what was expected of the law, how the rules were made and how they can be changed. I call this the constitutionalization of the euro. /3

In theory, the euro could also have been created through a broad enabling clause. Compare eg Dutch constitution (picture), or the Spinelli Draft Treaty (1984). From a const. persp. , it's very uncommon to include many rules on the currency in a rigid and supreme set of rules. /4

For the euro, there was no realistic alternative, for two reasons. 1) 'constitutionalizing the euro' meant that the MS would collectively retain control over the fundamental questions concerning the future of euro, limiting role of EP/COM. Building on work by @LuukvMiddelaar /5

2) Using rules to organize the everyday functioning of the euro conformed to a strand of economic thinking that favoured rules over politics.

The use of const. rules was the result of convergence in ideas on European integration and economic thinking. @ProfKMcNamara /6

The rules of the euro thus have economic and political ambitions. Eg, from a constitutional perspective, the rules on economic governance do not only aim to achieve a limited amount of economic convergence, but also to strongly limit EU powers. /7

Eg. the Stability and Growth Pact ('97) conformed neatly to Treaty limits, guaranteeing the limited influence of EU on MS finance. Treaty rules were open on purpose, not allowing secondary legislation to lay down restrictions on Council. Toothless on purpose. @MathieuLLSegers /8

Until 2009, the Maastricht Treaty had very successfully organized the vertical+horizontal balances of power in EMU. From a constitutional perspective, the rules of the euro mostly did what they were supposed to do: organize a specific form of economic and monetary integration. /9

In the euro-crisis, the constitutional nature of EMU prevented the 'community method' and enabled the predominance of the collectivity of Eurozone MS in the response to the crisis. There was limited EU legal innovation, based on specific points of ambiguity in the Treaties. /10

Eg. the no bailout clause was ambiguous on purpose. Its economic rationale is to prevent 'moral hazard'. However, this is achieved by putting stress on legal system. Making the clause ambiguous served to allow the MS collectively to circumvent it, in case of a deep crisis. /11

The CJEU signed off on specific elements of legal innovation (eg. ECB mandate), whilst avoiding overall discussion on the role of law for EMU. The legal straightjacket was adjusted, not removed. /12

After the crisis, the lack of agreement amongst the MS immediately prevented further deepening of EMU. Due to the prevalence of veto players in many areas of EU law (due to constitutionalization) change is very hard to achieve in non-crisis times. /13

Three general observations about role of law:
1) Despite prevalence of law, there has been very little thinking about what is expected of courts in EMU. I'm hesitant in blaming courts in EMU: if you give Courts a lot of law, they're going to use it. /14

2) the institutional position of the ECB is very different from nat'l CB due to the constitutionalization of the independence AND the lack of a strong EU fiscal policy-maker. ECB has no point of opposition in EU politics. Based on work by @Amy_Verdun and Majone. /15

3) When looking at the rules of EMU, economics is only part of the story. The rules of EMU are also about organizing European integration. EMU aimed to keep the MS in charge, and the institutions in check. See @dermot_hodson on new intergovernmentalism /16

To conclude, EU const. law is a tool that can have many different functions, and its effects are difficult to predict. Legal studies of EMU shouldn't only focus on what's allowed, but also about whether law can carry the heavy expectations placed on it. @KatharinaPistor /17

My recent publications on EU law concern the Weiss case #PSPP #CJEU, the proposals for EU Budget for eurozone #BICC, and the normative implications of using EU Treaties. All can be found here:
marijnvandersluis.wordpress.com/publications/

My blogs appear on @EulawLive and @MontesquieuInst. /END