Date of acceptance
:
08/10/2012
Translation
C-370/12 - 30
OBSERVATIONS OF THE GOVERNMENT OF THE FRENCH
REPUBLIC
Case C-370/12 *
Document lodged by:
THE FRENCH REPUBLIC
Usual name of the case:
PRINGLE
Date lodged:
14 September 2012
MINISTRY OF FOREIGN AFFAIRS FRENCH REPUBLIC
Paris, 14 September 2012
TO THE PRESIDENT
AND MEMBERS
OF THE COURT OF JUSTICE
OF THE EUROPEAN UNION
OBSERVATIONS
OF THE GOVERNMENT OF THE FRENCH REPUBLIC
IN CASE C-370/12
PRINGLE
* Language of the case: English.
OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
1
By decision of 31 July 2012 the Supreme Court of Ireland referred the following
questions to the Court of Justice of the European Union for a preliminary ruling
under Article 267 TFEU:
‘(1) Whether European Council Decision 2011/199/EU of 25 March 2011 is valid:
–
Having regard to the use of the simplified revision procedure pursuant to
Article 48(6) TEU and, in particular, whether the proposed amendment to
Article 136 TFEU involved an increase of the competences conferred on the
Union in the Treaties;
–
Having regard to the content of the proposed amendment, in particular
whether it involves any violation of the Treaties or of the general principles
of law of the Union.
(2) Having regard to
–
Articles 2 and 3 TEU and the provisions of Part Three, Title VIII TFEU, and
in particular Articles 119, 120, 121, 122, 123, 125, 126 and 127 TFEU;
–
the exclusive competence of the Union in monetary policy as set out in
Article 3(1)(c) TFEU and in concluding international agreements falling
within the scope of Article 3(2) TFEU;
–
the competence of the Union in coordinating economic policy, in accordance
with Article 2(3) TFEU and Part Three, Title VIII, TFEU;
–
the powers and functions of Union Institutions pursuant to principles set out
in Article 13 TEU;
–
the principle of sincere cooperation laid down in Article 4(3) TEU;
–
the general principles of Union law including in particular the general of
effective judicial protection and the right to an effective remedy as provided
under Article 47 of the Charter of Fundamental Rights of the European
Union and the general principle of legal certainty;
is a Member State of the European Union whose currency is the euro entitled to
enter into and ratify an international agreement such as the ESM Treaty?
(3) If the European Council Decision is held valid, is the entitlement of a Member
State to enter into and ratify an international agreement such as the ESM Treaty
subject to the entry into force of that decision?’
2
Those questions call for the following observations from the French Government.
2
PRINGLE
I – FACTS AND PROCEDURE
3
The plaintiff at first instance, and appellant before the Supreme Court (‘the
plaintiff’), is an Irish citizen and a member of Dáil Éireann, once of the Houses of
the Oireachtas, the national parliament.
4
The plaintiff opposes the ratification by Ireland of the Treaty establishing the
European Stability Mechanism (ESM), done at Brussels on 2 February 2012 (‘the
ESM Treaty’), and for that reason brought an action before the High Court on 13
April 2012 against the Government of Ireland, Ireland and the Attorney General.
5
By judgment of 17 July 2012 the High Court dismissed all the plaintiff’s claims.
The plaintiff immediately appealed to the Supreme Court against the decision of
the High Court.
6
On 31 July 2012 the Supreme Court decided to refer to the Court of Justice for a
preliminary ruling the questions set out at paragraph 1 of these observations.
II – THE ESM TREATY
7
Recital 4 to the ESM Treaty states:
‘Strict observance of the European Union framework, the integrated macro-
economic surveillance, in particular the Stability and Growth Pact, the
macroeconomic imbalances framework and the economic governance rules of the
European Union, should remain the first line of defence against confidence crises
affecting the stability of the euro area.’
8
Article 3 of the ESM Treaty provides:
‘The purpose of the ESM shall be to mobilise funding and provide stability
support under strict conditionality, appropriate to the financial assistance
instrument chosen, to the benefit of ESM Members which are experiencing, or are
threatened by, severe financing problems, if indispensable to safeguard the
financial stability of the euro area as a whole and of its Member States. For this
purpose, the ESM shall be entitled to raise funds by issuing financial instruments
or by entering into financial or other agreements or arrangements with ESM
Members, financial institutions or other third parties.’
9
Article 13(2) and (3) of the ESM Treaty provides:
‘2. On the basis of the request of the ESM Member and the assessment referred to
in paragraph 1, the Board of Governors may decide to grant, in principle, stability
support to the ESM Member concerned in the form of a financial assistance
facility.
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OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
3. If a decision pursuant to paragraph 2 is adopted, the Board of Governors shall
entrust the European Commission – in liaison with the ECB and, wherever
possible, together with the IMF – with the task of negotiating, with the ESM
Member concerned, a memorandum of understanding (‘MoU’) detailing the
conditionality attached to the financial assistance facility. The content of the MoU
shall reflect the severity of the weaknesses to be addressed and the financial
assistance instrument chosen. In parallel, the Managing Director of the ESM shall
prepare a proposal for a financial assistance facility agreement, including the
financial terms and conditions and the choice of instruments, to be adopted by the
Board of Governors.
The MoU shall be fully consistent with the measures of economic policy
coordination provided for in the TFEU, in particular with any act of European
Union law, including any opinion, warning, recommendation or decision
addressed to the ESM Member concerned.’
III – APPLICABLE EUROPEAN UNION (EU) LAW
10 Article 4(3) TEU provides:
‘… 3. Pursuant to the principle of sincere cooperation the Union and the Member
States shall, in full mutual respect, assist each other in carrying out tasks which
flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to
ensure fulfilment of the obligations arising out of the Treaties or resulting from
the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and
refrain from any measure which could jeopardise the attainment of the Union’s
objectives.’
11 Article 13(2) TEU provides:
‘2. Each institution shall act within the limits of the powers conferred on it in the
Treaties, and in conformity with the procedures, conditions and objectives set out
in them. The institutions shall practice mutual sincere cooperation.’
12 Article 48(6) TEU provides:
‘6. The Government of any Member State, the European Parliament or the
Commission may submit to the European Council proposals for revising all or part
of the provisions of Part Three of the Treaty on the Functioning of the European
Union relating to the internal policies and action of the Union.
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PRINGLE
The European Council may adopt a decision amending all or part of the provisions
of Part Three of the Treaty on the Functioning of the European Union. The
European Council shall act by unanimity after consulting the European Parliament
and the Commission, and the European Central Bank in the case of institutional
changes in the monetary area. That decision shall not enter into force until it is
approved by the Member States in accordance with their respective constitutional
requirements.
The decision referred to in the second subparagraph shall not increase the
competences conferred on the Union in the Treaties.’
13 Article 2(3) TFEU provides:
‘3. The Member States shall coordinate their economic and employment policies
within arrangements as determined by this Treaty, which the Union shall have
competence to provide.’
14 Article 3 TFEU provides:
‘The Union shall have exclusive competence in the following areas:
…
(c) monetary policy for the Member States whose currency is the euro;
…’
15 Article 5(1) TFEU provides:
‘The Member States shall coordinate their economic policies within the Union. To
this end, the Council shall adopt measures, in particular broad guidelines for these
policies.
Specific provisions shall apply to those Member States whose currency is the
euro.’
16 Article 122(2) TFEU provides:
‘Where a Member State is in difficulties or is seriously threatened with severe
difficulties caused by natural disasters or exceptional occurrences beyond its
control, the Council, on a proposal from the Commission, may grant, under certain
conditions, Union financial assistance to the Member State concerned. The
President of the Council shall inform the European Parliament of the decision
taken.’
17 Article 125(1) TFEU provides:
5
OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
‘1. The Union shall not be liable for or assume the commitments of central
governments, regional, local or other public authorities, other bodies governed by
public law, or public undertakings of any Member State, without prejudice to
mutual financial guarantees for the joint execution of a specific project. A
Member State shall not be liable for or assume the commitments of central
governments, regional, local or other public authorities, other bodies governed by
public law, or public undertakings of another Member State, without prejudice to
mutual financial guarantees for the joint execution of a specific project.’
18 European Council Decision 2011/199/EU of 25 March 2011 amending Article 136
of the Treaty on the Functioning of the European Union with regard to a stability
mechanism for Member States whose currency is the euro (‘the European Council
Decision’) provides in Article 1:
‘The following paragraph shall be added to Article 136 of the Treaty on the
Functioning of the European Union:
“3. The Member States whose currency is the euro may establish a stability
mechanism to be activated if indispensable to safeguard the stability of the euro
area as a whole. The granting of any required assistance under the mechanism will
be made subject to strict conditionality.”’
IV – ANSWERS TO THE QUESTIONS REFERRED
1. First question
19 By its first question, the Supreme Court seeks to ascertain, first, whether the
European Council was entitled to have recourse to the simplified revision
procedure under Article 48(6) TEU to adopt the new Article 136(3) TFEU and,
second, whether the proposed amendment – that is to say, the new Article
136(3) TFEU – infringes the EU Treaty or the FEU Treaty or the general
principles of European Union law.
a) First part of the first question
20 By the first part of its first question, the Supreme Court questions the validity of
the European Council Decision, in so far as it was adopted under the simplified
revision procedure provided for in Article 48(6) TEU.
21 As a preliminary point, the French Government observes that the European
Council Decision is an act of an institution and that the Court therefore has
jurisdiction to ascertain whether it was adopted according to the procedure laid
down in the EU Treaty.
6
PRINGLE
22 The French Government is of the view that the European Council Decision was
validly adopted according to that procedure and that it is therefore valid in that
respect.
23 It should be borne in mind that Article 48(6) TEU authorises the European
Council to adopt a decision amending all or part of the provisions of Part Three of
the FEU Treaty. That simplified revision procedure entails consultation of the
European Parliament and the Commission, and the European Central Bank (ECB)
in the case of institutional changes in the monetary area, then the approval of the
Member States in accordance with their respective constitutional requirements.
That procedure is permitted only for amendments of the Treaty that do not
increase the competences conferred on the Union in the Treaties.
24 In the present case, it is common ground that the European Council Decision is
limited to amending a provision of Part Three of the FEU Treaty, in fact Article
136 TFEU. It is also common ground that the European Parliament, the
Commission and the ECB were consulted. Last, Article 2 of the European Council
Decision provides that the decision is to enter into force on 1 January 2013 after
the Member States have complied with their respective constitutional
requirements.
25 However, it remains to be determined whether the European Council Decision
does or does not increase the competences of the Union.
26 In that regard, the French Government maintains that, as the Commission, the
European Parliament and the ECB stated in their opinions on the proposal for a
decision, the European Council Decision does not in fact increase the
competences conferred on the Union in the Treaties.
27 Indeed, the new Article 136(3) TFEU merely recognises that the Member States
of the euro area, and not the Union itself, have the power to create a stability
mechanism on certain conditions. Thus, that provision does not establish a new
legal basis in order to enable the Union to undertake an action which was not
possible before the amendment of the FEU Treaty.
28 It is true that, as the plaintiff in the main proceedings maintains in essence, the
new Article 136(3) TFEU does not preclude the possibility that an agreement
between the Member States of the euro area establishing a stability mechanism
should, as does, moreover, the Treaty establishing the EMS, entrust new tasks to
the institutions of the Union.
29 Thus, in particular, articles 13 and 37 of the Treaty establishing the EMS entrust
such new tasks to the Commission, the ECB and the Court of Justice.
30 However, the allocation of those new tasks to the Commission, the ECB and the
Court of Justice does not constitute an increase of the competences conferred on
the Union in the EU and FEU Treaties. Those institutions do not carry out the
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OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
tasks in question within the framework of those Treaties and on behalf of the
Union, but do so on the basis of an international agreement between Member
States, on behalf of those States.
31 Accordingly, the French Government proposes that the answer to the first part of
the first question should be that the European Council Decision was validly
adopted according to the simplified revision procedure under Article 48(6) TEU
and that it is therefore valid in that respect.
b) Second part of the first question
32 By the second part of its first question, the Supreme Court asks whether the new
Article 136(3) TFEU infringes the EU Treaty or the FEU Treaty, or the general
principles of EU law.
33 The French Government considers that the Court does not have jurisdiction to
answer the second part of the first question.
34 Although, under Article 267 EU, the Court has jurisdiction to interpret the
Treaties and the acts of the institutions, its jurisdiction to assess validity extends
only to the acts of the institutions. Thus, in the context of the preliminary
reference procedure, as, moreover, in the context of an action for annulment, the
Court does not have jurisdiction to assess the validity of primary law.
35 Admittedly, the European Council Decision is an act of an institution and, in the
context of the first part of the first question, the French Government did not
dispute the Court’s jurisdiction to ascertain whether that decision was validly
adopted under the simplified revision procedure in Article 48(6) TEU.
36 However, it does not follow that the Court would have jurisdiction to assess the
validity of Article 1 of the European Council Decision, which provides that a
paragraph 3 is to be added to Article 136 TFEU.
37 That new paragraph, which is to be inserted into the FEU Treaty, is a provision of
primary law.
38 Consequently, for the reasons stated at paragraph 34 of these observations, the
Court of Justice does not have jurisdiction to assess its validity.
39 Furthermore, it should be borne in mind that, in the framework of the ordinary
revision procedure, the European Council is not called upon to adopt a decision
such as the European Council Decision at issue. In effect, in the framework of that
procedure, the revision of the Treaties is effected not by means of a European
Council Decision but by means of an amending Treaty between Member States.
Thus, in the framework of the ordinary revision procedure, the amendment of the
Treaties is to be found not in an act of an institution but in a Treaty between
Member States, the validity of which the Court clearly lacks jurisdiction to assess.
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PRINGLE
40 In order to add paragraph 3 to Article 136 TFEU, it would also have been possible
to have recourse to the ordinary revision procedure, in which case the Court would
clearly not have had jurisdiction to assess the validity of that amendment of the
FEU Treaty.
41 Since the Court’s jurisdiction to assess the validity of an amendment of the
Treaties cannot depend on the revision procedure chosen, it necessarily follows
that the Court has no jurisdiction to assess the validity of the new paragraph 3 of
Article 136 TFEU, even though that provision is to be found in an act of the
European Council.
42 Consequently, the French Government considers that the Court does not have
jurisdiction to answer the second part of the first question.
43 Accordingly, the French Government proposes that the answer to the first question
should be, first, that the European Council Decision was validly adopted under the
simplified revision procedure in Article 48(6) TEU and that it is therefore valid in
that respect. Second, the Court does not have jurisdiction to assess the validity of
the new paragraph 3 of Article 136 TFEU forming the subject-matter of that
decision.
2. Second question
44 By its second question, the Supreme Court asks in essence whether certain
provisions of the Treaties and certain general principles of EU law must be
interpreted as meaning that they preclude an international agreement such as the
Treaty establishing the EMS.
45 The provisions of the Treaties to which the Supreme Court refers relate to
economic policy, monetary policy, the powers and functions of the institutions
and sincere cooperation, while the general principles of EU law to which it refers
are the general principles of effective judicial protection and legal certainty.
46
First, the Supreme Court asks whether the Treaty establishing the EMS infringes
Article 2(3) TFEU and also Articles 119 TFEU, 120 TFEU, 121 TFEU,
122 TFEU, 123 TFEU, 125 TFEU and 126 TFEU, which relate to the economic
policy of the Union. With the exception of Article 2(3) TFEU, those articles are to
be found in Chapter I of Title VIII of Part Three of the FEU Treaty, entitled
‘Economic … policy’.
47 In that regard, the French Government observes first of all that, pursuant to Article
2(3) TFEU and Article 5(1) TFEU, the Member States are to coordinate their
economic policies within the Union and that, to that end, the Council is to adopt
measures, in particular broad guidelines for those policies. Article 119(1) TFEU
provides that the activities of the Member States and the Union are to include the
adoption of an economic policy which is based, in particular, on the close
coordination of Member States’ economic policies, and Article 120 TFEU
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OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
provides that Member States are to conduct their economic policies with a view to
contributing to the achievement of the objectives of the Union and in the context
of those broad guidelines.
48 That coordination of economic policies is to be based on the broad guidelines of
economic policy and the multilateral surveillance procedure laid down in Article
121 TFEU and on the excessive deficits procedure laid down in Article
126 TFEU.
49 The French Government observes that recital 4 to the Treaty establishing the ESM
states that strict observance of the European Union framework, the integrated
economic surveillance, in particular the Stability and Growth Pact, the
macroeconomic imbalances framework and the economic governance rules of the
European Union, should remain the first line of defence against confidence crises
affecting the stability of the euro area.
50 Furthermore, the second subparagraph of Article 13(3) of the Treaty establishing
the ESM provides that the memorandum of understanding relating to a financial
assistance facility is to be fully consistent with the measures of economic policy
coordination provided for in the TFEU, in particular with any act of European
Union law, including any opinion, warning, recommendation or decision
addressed to the ESM Member concerned.
51 It follows that the operations provided for in the Treaty establishing the ESM must
comply with the objectives relating to economic policy coordination and the
measures taken in that context in the framework of the Union. That is specifically
the purpose of the strict conditionality referred to in Article 3 of the Treaty
establishing the EMS, which must accompany to the grant of financial assistance.
52 Accordingly, the Treaty establishing the ESM does not infringe Articles
2(3) TFEU, 119 TFEU, 120 TFEU, 121 TFEU and 126 TFEU.
53 As regards Article 122 TFEU, it should be observed that paragraph 1 of that
article, which provides for the adoption by the Council of measures if severe
difficulties arise in the supply of certain products, notably in the area of energy,
has no relevance to the present case.
54 As regards paragraph 2 of Article 122 TFEU, it provides that where a Member
State is in difficulties or is seriously threatened with severe difficulties caused by
natural disasters or exceptional circumstances beyond its control, the Council, on
a proposal from the Commission, may grant, under certain conditions, Union
financial assistance to the Member State concerned. It was on that basis that the
Council established the European Financial Stability Mechanism (EFSM), which,
as stated at recital 1 to the Treaty establishing the ESM, the ESM is intended to
replace.
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PRINGLE
55 Although Article 122(2) TFEU authorises the Council to introduce financial
mechanisms such as the EMSF, which are financed or guaranteed by the budget of
the Union, there is nothing in that provision to prevent the Member States from
establishing such mechanisms outside the framework of the Union and on the
basis of their own resources.
56 Accordingly, the Treaty establishing the EMS does not infringe Article
122 TFEU.
57 As regards Article 123 TFEU, that provision prohibits the ECB and the central
banks of the Member States from granting overdraft facilities or any other type of
credit facility or from directly acquiring the debt instruments of the Member
States.
58 However, that article is addressed only to the ECB and the central banks of the
Member States and not to the Member States themselves.
59 Accordingly, the Treaty establishing the EMS does not infringe Article
123 TFEU.
60 As regards Article 125(1) TFEU, it provides that the Union is not to be liable for
or to assume the commitments of central governments, regional, local or other
public authorities, other bodies governed by public law, or public undertakings of
any Member State, without prejudice to mutual financial guarantees for the joint
execution of a specific project. In addition, a Member State is not to be liable for
or to assume the commitments of central governments, regional, local or other
public authorities, other bodies governed by public law, or public undertakings of
another Member State, without prejudice to mutual financial guarantees for the
joint execution of a specific project.
61 In the present case, it must be emphasised that, under Article 12(1) of the Treaty
establishing the ESM, if indispensable to safeguard the financial stability of the
euro area as a whole and of its Member States, the ESM may provide stability
support to an ESM Member subject to
strict conditionality, appropriate to the
financial assistance instrument chosen. Such conditionality may range from a
macro-economic adjustment programme to continuous respect of pre-established
eligibility conditions.
62 Furthermore, Article 20(1) of the Treaty establishing the ESM provides that, when
granting stability support, the ESM is to aim to fully cover its financing and
operating costs and is to include an appropriate margin.
63 It follows that the Treaty establishing the EMS complies with the objective of
Article 125(1) TFEU, which is to ensure the budgetary discipline of the Member
States.
11
OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
64 Accordingly, the Treaty establishing the EMS does not infringe Article
125 TFEU.
65 On the basis of paragraphs 45 to 63 of these observations, the French Government
considers that the Treaty establishing the EMS does not infringe any of the
provisions of the FEU Treaty on economic policy to which the Supreme Court has
referred.
66
Second, the Supreme Court asks whether the Treaty establishing the EMS
infringes the exclusive competence of the Union on monetary policy, for Member
States whose currency is the euro. In that regard, the Supreme Court refers to
Article 3(1)(c) TFEU, Article 3(2) TFEU, Article 127 TFEU and, more generally,
Title VIII of Part Three of the FEU Treaty.
67 In that regard, it is sufficient to observe that the establishment of a mechanism
such as the ESM comes within the economic policy and not the monetary policy.
The main objective of the monetary policy is to maintain price stability. Thus, the
EMS does not share either the objectives and tasks or the means of the European
System of Central Banks (ESCB), which defines and implements the monetary
policy of the Union.
68 As stated in Article 3 of the Treaty establishing the ESM, the purpose of the ESM
is to be to mobilise funding and provide stability support under strict
conditionality, appropriate to the financial assistance instrument chosen, to the
benefit of ESM Members which are experiencing, or are threatened by, severe
financing problems, if indispensable to safeguard the financial stability of the euro
area as a whole and of its Member States.
69 In those circumstances, the EMS, which is an international organisation quite
separate from the ESCB, is designed to provide financial assistance to Member
States in order to preserve the financial stability of the euro area, which does not
correspond either to the main objective or to the means of intervention of the
ESCB.
70 Thus the new provision of the FEU Treaty, which provides that Member States
whose currency is the euro may establish a stability mechanism, was inserted into
Article 136 TFEU, which provides special measures for the coordination of
economic policies for those States.
71 Accordingly, the Treaty establishing the EMS does not violate the exclusive
competence of the Union in respect of monetary policy.
72
Third, the Supreme Court asks whether the Treaty establishing the EMS infringes
the power and functions of the institutions of the Union in the framework of the
principles set out at Article 13 TEU. Thus, the Supreme Court asks essentially
whether, in entrusting new tasks to the Commission, the ECB and the Court of
Justice, the Treaty establishing the EMS infringes the obligation for each
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PRINGLE
institution to act within the limits of the powers conferred on them in the EU and
FEU Treaties.
73 In that regard, the French Government observes that, in accordance with Article
13 of the Treaty establishing the EMS, the Commission, in liaison with the ECB,
is to assess the request for financial assistance submitted by a Member State of the
EMS, negotiate, in liaison with the ECB and, wherever possible, together with the
IMF, with the ESM Member concerned a possible Memorandum of
Understanding detailing the conditionality attached to the financial assistance
facility, and sign the Memorandum of Understanding on behalf of the EMS, and is
to be entrusted, in liaison with the ECB and, wherever possible, together with the
IMF, with monitoring compliance with the conditionality attached to the financial
assistance facility.
74 However, in accordance with the case-law of the Court of Justice, the Member
States are entitled, outside the framework of the Union, to entrust new tasks to the
institutions, provided that those tasks are not within the exclusive competence of
the Union (see Joined Cases C-181/91 and C-248/91
Parliament v
Council and
Commission [1993] ECR I-3685, paragraph 16, and Case C-316/91
Parliament v
Council [1994] ECR I-625, paragraphs 26 and 34), and that those tasks do not
alter the essential character of the powers which the Union Treaties confer on
those institutions (see, in particular, Opinion 1/92 [1992] ECR I-2821, paragraph
41, and Opinion I/00 [2002] ECR I-3493, paragraph 20).
75 In the present case, as the French Government observed at paragraph 67 of these
observations, the establishment of a stability mechanism forms part of the
economic policy and not of the monetary policy. It follows from Article
3(1) TFEU that while the Union has exclusive competence in monetary policy for
the Member States whose currency is the euro, it does not have such competence
in matters of economic policy.
76 Furthermore, the tasks entrusted to the Commission and the ECB by the Treaty
establishing the EMS, and in particular Article 13 of that Treaty, do not appear to
be substantially different from the competences conferred on them by the EU and
FEU Treaties and therefore do not alter the essential character of those
competences.
77 As regards the Court of Justice, Article 37(3) of the Treaty establishing the EMS
provides that the Board of Directors is to decide on any dispute arising between
the EMS and one of its Members of between ESM Members, in connection with
the interpretation and application of that Treaty, and that a Member State of the
EMS may challenge the decision of the Board of Directors before the Court of
Justice.
78 In that regard, it should be borne in mind that Article 273 TFEU provides that the
Court of Justice is to have jurisdiction in any dispute between Member States
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OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
which relates to the subject-matter of the Treaty if that dispute is submitted to it
under a special agreement between the parties.
79 The conditions stipulated by that article are satisfied in this case.
80 In the first place, under Article 37 of the Treaty establishing the EMS, only a
Member State may bring a matter before the Court of Justice. Furthermore, an
action brought against a decision of the Board of Directors determining a dispute
must be regarded as being directed against other Member States, since those
decisions are adopted by a qualified majority of the representatives of the
Governments sitting on the Board of Directors.
81 In the second place, the Treaty establishing the EMS is closely linked to EU law,
so much so that any dispute relating to its interpretation or application is
necessarily closely connected to EU law.
82 In the third place, it is not necessary that a dispute has already arisen in order for
Member States to be entitled to bring it before the Court of Justice on the basis of
Article 273 TFEU. The Member States must therefore be able to agree in advance
to submit any dispute to the Court of Justice and Article 37 of the Treaty
establishing the EMS must be regarded as a special agreement within the meaning
of that article.
83 In the fourth place, Article 37 of the Treaty establishing the EMS provides that the
judgment of the Court of Justice is to be binding on the parties. Thus, that article
does not alter the character of the function of the Court, as conceived in the Union
Treaties, which is that of a court whose decisions are binding (see Opinion 1/92,
paragraph 37).
84 The French Government further observes that recourse has already been made to
Article 273 TFEU in the European Financial Stability Fund (EFSF) Agreement
signed at Luxembourg on 7 June 2010 (Article 16(2)) and also in the Treaty on
Stability, Coordination and Governance in the Economic and Monetary Union,
signed at Brussels on 2 March 2012 (Article 8).
85 Accordingly, the French Government considers that the Treaty establishing the
EMS does not violate the powers and functions of the Union in the framework of
the principles set out at Article 13 TEU.
86
Fourth, the Supreme Court asks whether the Treaty establishing the EMS
infringes the principle of sincere cooperation laid down in Article 4(3) TEU.
87 Under that provision, the Union and its Member States are, in full mutual respect,
to assist each other and are to facilitate the achievement of the Union’s tasks and
refrain from any measure which could jeopardise the attainment of the Union’s
objectives.
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PRINGLE
88 However, since the Treaty establishing the EMS would, as the French
Government maintains, be compatible with the economic policy and the monetary
policy, and also with powers conferred on the institutions, it is impossible to see
how that Treaty could infringe the principle of sincere cooperation.
89 Accordingly, the French Government considers that the Treaty establishing the
EMS does not infringe the principle of sincere cooperation laid down in Article
4(3) TEU.
90
Fifth, the Supreme Court asks whether the Treaty establishing the ESM infringes
the general principle of effective judicial protection and the right to an effective
remedy within the meaning of Article 47 of the Charter of Fundamental Rights of
the European Union, and also the principle of legal certainty.
91 The French Government questions the admissibility of this part of the second
question. There is nothing in the decision making the reference on the basis of
which it might be possible to understood why the plaintiff in the main proceedings
or the Supreme Court itself entertained doubts on that point.
92 In that regard, it should be borne in mind that, according to the Court, the referring
court must state the precise reasons which caused it to have doubts as to the
interpretation of certain provisions of Community law and to consider that it was
necessary to refer questions to the Court for a preliminary ruling. Thus, it is
essential that the national court should give at the very least some explanation of
the reasons for the choice of the Community provisions of which it requests an
interpretation and on the link it establishes between those provisions and the
national legislation applicable to the dispute (see order in Case C-12/07
Autostrada dei Fiori and AISCAT [2007] ECR I-162, paragraph 17 and the case-
law cited).
93 Nor can account be taken of any elements concerning the alleged infringement of
the general principle of effective judicial protection and the principle of legal
certainty that are among the documents on the file in the main proceedings.
94 In effect, the Court has held that the information provided in the decisions making
references serve not only to enable the Court to give helpful answers, but also to
give the Governments of the Member States and other interested parties the
opportunity to submit observations pursuant to Article 23 of the Statute of the
Court. The Court has further held that it is its duty to ensure that that opportunity
is safeguarded, in view of the fact that, by virtue of that provision, only the
decisions making references are notified to the interested parties (see order in
Autostrada dei Fiori and ASISCAT, paragraph 18).
95 It is for that reason that the French Government considers that, in that it refers to
a possible infringement of the general principle of effective judicial protection and
the right to an effective remedy within the meaning of Article 47 of the Charter of
Fundamental Rights of the European Union, and of the principle of legal certainty,
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OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
the second question referred by the Supreme Court must be rejected as
inadmissible.
96 In the alternative, the French Government considers that the Treaty establishing
the EMS cannot infringe the general principle of effective judicial protection. As
the present reference for a preliminary ruling demonstrates, the plaintiff has had
the opportunity to challenge the compatibility of that Treaty with EU law.
97 As regards the principle of legal certainty, it should be borne in mind that that
principle, which is a general principle of EU law, requires that European Union
legislation be clear and precise, and that its application be foreseeable for all
interested parties (see, in particular, Case C-606/10
ANAFE, not yet published in
the ECR, paragraph 76).
98 However, the Treaty establishing the ESM is not an act of the Union and, in any
event, it is impossible to see how that Treaty is not clear and precise and how its
application should not be foreseeable for all interested parties.
99 Admittedly, the Board of Directors is entitled to amend certain provisions of that
Treaty, as may be seen from Article 8 and from Annex II, on authorised capital
stock, or Articles 14 and 18, on the financial assistance instruments available to
the ESM. However, those amendments and additions are expressly provided for in
the Treaty establishing the EMS and their adoption is subject to specific
procedures.
100 Accordingly, the French Government considers that the Treaty establishing the
EMS does not infringe the general principle of effective judicial protection and the
right to an effective remedy within the meaning of Article 47 of the Charter of
Fundamental Rights of the European Union, or the principle of legal certainty.
101 It follows from paragraphs 44 to 100 to these observations that a Member State of
the European Union whose currency is the euro is entitled to enter into and ratify
an international agreement such as the Treaty establishing the ESM.
102 Accordingly, the French Government proposes that the answer to the second
question should be that Articles 2 TEU, 13 TEU, 2(3) TFEU, 3(1)(c) TFEU,
119 TFEU to 123 TFEU and 125 TFEU to 127 TFEU, and also the general
principles of effective judicial protection and legal certainty, are to be interpreted
as meaning that they do not preclude an international agreement such as the
Treaty establishing the EMS.
3. Third question
103 By its third question, the Supreme Court asks whether, if the European Council
Decision should be held valid, the entitlement of a Member State to enter into and
ratify an international agreement such as the ESM Treaty is subject to the entry
into force of that decision.
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PRINGLE
104 It follows from the French Government’s answer to the first question that the
European Council Decision is valid and from its answer to the second question
that, in its current version, that is to say, before the amendment to Article 136
enters into force, the FEU Treaty does not preclude an international agreement
such as the Treaty establishing the ESM.
105 Consequently, a Member States is entitled to ratify the Treaty establishing the
EMS and to deposit its instrument of ratification without awaiting the entry into
force of the European Council Decision.
106 Furthermore, it should be borne in mind that, at the European Council held on 9
December 2011, the Heads of State and of Government of the euro area declared
that their common objective was that the ESM should enter into force in July
2012. Under Article 2 of the European Council Decision, however, the
amendment of Article 136 TFEU provided for by that decision cannot enter into
force before 1 January 2013.
107 It follows that, in the European Council’s view, the ratification of the Treaty
establishing the ESM by the Member States whose currency is the euro is not
subject to the prior entry into force of the European Council Decision.
108 Accordingly, the French Government proposes that the answer to the third
question should be that a Member State is entitled to ratify the Treaty establishing
the EMS and to deposit its instrument of ratification without awaiting the entry
into force of the European Council Decision.
109 For all the reasons set out above, the French Government proposes that the Court
should answer the questions referred by the Supreme Court as follows:
‘(1) European Council Decision 2011/199/EU of 25 March 2011 amending
Article 136 of the Treaty on the Functioning of the European Union
with regard to a stability mechanism for Member States whose currency
is the euro was validly adopted according to the simplified revision
procedure in Article 48(6) TEU and is therefore valid in that respect.
The Court of Justice does not have jurisdiction to assess the validity of
the new paragraph 3 of Article 136 TFEU which forms the subject-
matter of that decision.
(2) Articles 2 TEU, 13 TEU, 2(3) TFEU, 3(1)(c) TFEU, 119 TFEU to
123 TFEU and 125 TFEU to 127 TFEU, and also the general principles
of effective judicial protection and legal certainty, are to be interpreted
as meaning that they do not preclude an international agreement such
as the Treaty establishing the European Stability Mechanism (EMS),
signed at Brussels on 2 February 2012 by the Member States of the euro
area.
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OBSERVATIONS OF THE FRENCH REPUBLIC – CASE C-370/12
(3) A Member State is entitled to ratify the Treaty establishing the EMS
and to deposit its instrument of ratification without awaiting the entry
into force of European Council Decision 2011/199/EU.’
Edwige BELLIARD
Gérard de BERGUES
Diégo COLAS
Étienne RANAIVOSON
Agents of the French Government
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