Year LVI, 2014, Single Issue, Page 9
Financial Autonomy
and Differentiated Integration*
Giulia Rossolillo
Introduction.
The system of financing the European Union has, since the 1950s, been reformed several times and also the subject of heated debate. It is a question that today, once again, finds itself at the heart of discussions on the future of the process of European integration. The economic and financial crisis of the past few years has, in fact, exposed both the shortcomings of the current system — this system, still based largely on contributions from the member states,[1] tends, in times of recession, to lead to a reduction in resources available at supranational level — and the need to find new resources in order to address the crisis.
The new aspect, which sets today’s situation apart from the situations of the past, is the fact that today the question of the financing of the EU intersects with two other issues: the growing presence of forms of differentiated integration between EU member states and, above all, the progressive emergence of the eurozone as an increasingly distinct entity within the European Union. It is no coincidence that the Council recently authorised an enhanced cooperation between eleven member states for the establishment of a tax on financial transactions,[2] the proceeds of which should, in part at least, be used to finance the EU budget; or that there has emerged, within this debate, the idea of a eurozone fiscal and budgetary capacity — most recently in the Commission’s “blueprint for a deep and genuine economic and monetary union”.[3]
This paper, aiming to provide an overview of the resources available to the EU cannot, therefore, fail to examine the new prospects that differentiated integration seems to be opening up in this field.
The Concept of Own Resources and the Relationship Between the Financing of an Organisation and the Degree of Autonomy it Enjoys.
The financing of an international organisation is not merely a technical issue: indeed, the mode of an organisation’s financing influences substantially the relations between it and its member states; in particular, it influences the degree of autonomy which the organisation enjoys in relation to them.[4] Indeed, when the resources at the disposal of an organisation are made up of financial contributions from states, then its capacity to act depends, ultimately, on the willingness of the states to make these contributions, which means that the organisation’s very existence will be endangered if this willingness is withdrawn or if it becomes impossible for the states — as in times of severe economic crisis — to allocate sufficient resources for this purpose.[5] Conversely, the greater the ability of an international organisation to procure its resources independently — and thus the more it is based on its “own resources” — the less dependent it will be on the will of the states that created it or have joined it.
However, the conditions that need to be in place in order to be able to say that the financing of an international organisation is truly autonomous are not immediately clear. Indeed, the relationship between the financing of an organisation and that organisation’s degree of independence from its member states is characterised by a complex web of different elements relating to the types of resources contributing to the funding, to their amount, and to the instruments available to the organisation for determining the type and amount of its own resources and for obtaining the payment of the same.
Indeed, the classic tendency, which began with the Treaty establishing the EEC,[6] is to set own resources in opposition to the member states’ contributions, but this approach does not allow an accurate definition of an organisation’s degree of financial autonomy. The main reason for this is the uncertainty over the very meaning of the expression “own resources”, which scholars have interpreted in two different ways that have different implications as regards the degree of independence of the international organisation in question.
According to a first interpretation, which was in fact initially accepted by the European Commission, only fiscal resources decided by the supranational organisation and paid to the same by natural and legal persons can be considered own resources.[7]Thus, the Commission’s green paper of 23 November 1978[8] on the financing of the Community budget reads “it is clear that an own resource has a fiscal nature, must be a direct charge of individuals or companies in the Community and be independent of decisions by the member States; there must also be an automatic link between the Community and the source of revenue, i.e. each economic operation on which the Community tax is levied.” According to a broader interpretation, on the other hand, own resources should be taken to include all those resources, including non-tax ones, that, through a common procedure, are automatically placed at the disposal of the supranational organisation. In other words, the supranational organisation would only need to have a direct and immediate right to obtain a given resource (i.e. a right not subject to a decision by the budgetary authority of the member states) for that resource to qualify as an own resource.[9]In this way, even non-tax resources that have no direct link with the competences exercised by the organisation could constitute own resources.
But whichever of these two interpretations one accepts, it is clear that profiling the type of resources available to an international organisation does not fully address the question of that organisation’s financial autonomy. In order for an organisation to be considered truly independent of its member states in terms of its financing, then the organisation itself has to have the capacity to determine the type and amount of its own resources, and has to be equipped with the instruments allowing it to obtain the payment of these funds. In fact, in order for an international organisation, even one funded only through fiscal resources, to acquire a significant degree of autonomy, the amount of the resources available must be sufficient to finance the activities that fall within its sphere of competence and must be decided by the organisation itself. Furthermore, to address the possibility of member states failing to make the payments, the organisation must also be equipped with the instruments necessary to enforce such payments, and must not depend, in this regard, on the authorities of the member states.
Therefore, the greatest degree of autonomy is reached not only when the organisation has at its disposal fiscal resources that are paid directly by natural or legal persons and stem from policies that the organisation itself has implemented, but also when the amount of these resources is decided through a supranational process not conditioned by the unanimous will of the organisation’s member states and the organisation has the powers of coercion necessary to ensure their actual payment.[10]
It is clear that an organisation’s achievement of this level of autonomy implies alimitation of the sovereignty of its member states; at the same time, the organisation, on acquiring the capacity to finance itself absolutely independently, would lose its identity as an international organisation and become, instead,asovereign entity.[11] On a spectrum between the classic model of an international organisation funded entirely by contributions from its member states and the hypothetical scenario outlined above, there nevertheless lie possible intermediate forms, such as today’s European Union.
This paper sets out to analyse, in the light of these considerations, the mode of financing of the European Coal and Steel Community (ECSC), and then of the European Community/European Union, in order to ascertain their level of financial autonomy, and to assess whether and to what extent the new prospects opened up by the differentiated integration phenomenon constitute a step forward towards a greater strengthening of this autonomy.
The Financing of the ECSC.
Within the category of international organisations financed by own resources, the ECSC undoubtedly features prominently.[12] Article 49 of the ECSC Treaty empowered the High Authority “to procure the funds necessary to the accomplishment of its mission” “by placing levies on the production of coal and steel” and “by borrowing”.[13] In particular, whereas the levies were intended to cover the administrative costs of the organisation, non-reimbursable assistance and any “portion of the servicing charges on the High Authority’s obligations” that could not be covered “after recourse to the reserve fund” (Art. 50 ECSC Treaty), “the funds obtained by borrowing”, on the other hand, could “be used by the High Authority only to grant loans” (Art. 51 ECSC Treaty). It was therefore the levies that were important for the purpose of financing the organisation.
The levies were paid directly by coal and steel producing companies to the ECSC into accounts opened in the name of the High Authority, and therefore not via the budgets of the member states:[14] the treasury of the ECSC was therefore centralised and independent of the national treasuries.[15]
From the perspective of the type of resources at its disposal, the ECSC, being funded by taxes[16] paid directly by companies, thus enjoyed a considerable degree of independence from the member states.
This independence was also borne out, at least in part, by the instruments it had at its disposal for deciding the amount of its resources and for obtaining payment of them.
As regards the first of these aspects, Art. 50, par. 2 of the ECSC Treaty, stated that the mean rate of levy “may not exceed one percent unless previously authorised by a two-thirds majority of the Council”, while the “method of assessment and collection” of the levies was to “be fixed by a general decision of the High Authority taken after consulting the Council”. In this way, the extent of the High Authority’s power to set the rate of levy, and thus to determine the amount of resources available to the organisation, was defined by the specification — contained in the founding Treaty itself — of the upper limit of this rate. Despite this, its power was far from insignificant, given that the High Authority retained the faculty, within this limit, to establish a levy rate that was superior to the real needs of the organisation — a faculty that it could use to create a surplus as a buffer against times of crisis[17] or to finance expenditure not explicitly provided for under the founding Treaty.[18] Furthermore, the upper limit could be modified by the Council, without the latter even needing to obtain the consensus of all its members in this regard.
As for the instruments at the disposal of the ECSC for obtaining payment of the levies imposed on enterprises, the High Authority, in the event of “failure to obey the decisions it may issue”, had the faculty to “impose increases of not more than 5 percent per quarter-year of delay” (Art. 50, par. 3, ECSC Treaty). Moreover, the “decisions of the High Authority imposing financial obligations on enterprises [were] executory”, and their enforcement was subject only to the placement of a writ of execution, without any formal verification by the state “on the territory of which the decision [was] to be carried out”, other than its “certification of the authenticity of such decisions”[19] (Art. 92, ECSC Treaty). Finally, it was established that officials of the High Authority responsible for conducting inspections should enjoy on the territories of the member states the same rights and powers legally granted by the latter to the officials of their own tax services (Art. 86, par. 4, ECSC Treaty).
Therefore, even though the ECSC undoubtedly remained, to a degree, financially dependent on the will of the states, it constituted, in all the respects mentioned above, an extremely advanced model within the spectrum of international organisations.
The Evolution of the European Union’s System of Own Resources.
The method found to finance the ECSC proved difficult to apply to the two organisations created under the Treaties of Rome in 1957: the EEC and Euratom. Indeed, whereas the ECSC had concerned two strong and traditional industrial sectors, with solid economic foundations offering plenty of scope for the application of levies, Euratom, concerning a sector — atomic energy — that needed sizeable investments and that was not yet able to generate significant profits, did not possess these attributes; meanwhile the European Economic Community, being an international organisation designed to pursue economic integration and created with much broader aims, was characterised by the presence of significant fiscal disparities between its member states, which ruled out the immediate establishment of European taxes.[20] Thus, Art. 200 of the Treaty establishing the European Economic Community (TEEC), in a continuation of what is laid down in the acts establishing the traditional international organisations, stipulated that the revenue feeding the budget of the European Economic Community should be made up of financial contributions[21] paid by the member states.
However, Art. 201, of the same Treaty stipulated that the Commission should examine conditions in which these contributions might be replaced by own resources, in particular by revenue from the Common Customs Tariff. To this end, the Commission was required to submit proposals to the Council which, through a unanimous decision reached after consulting the Assembly, would then establish provisions in this regard and recommend their adoption by the member states, each in accordance with its own constitutionalrules.[22]
A first step in this direction was taken in 1962, with the establishment of the European Agricultural Guidance and Guarantee Fund. Indeed, Art. 2 of the regulation establishing this Fund[23] stipulated that revenue from levies on imports from third countries would accrue to the Community and be used for Community expenditure, and that the Council should, at the appropriate time, initiate the procedure laid down in Art. 201 TEEC in order to implement the above-mentioned provisions. The agricultural sector is thus the one that saw the emergence of the Community’s first own resource.
A true system of own resources was put in place a few years later, through the Council’s decision of 21 April 1970,[24] which stipulated that the financing of the European Economic Community was to be based on three different resources: customs duties,[25] agricultural levies and a percentage of the revenue from value-added tax. In particular, it was specified that from 1 January 1971, all the proceeds deriving from agricultural levies and customs duties should be included in the Community budget, while the share of the revenue from value-added tax, pending application in all the member states of the rules establishing a uniform VAT base, would become an own resource only as from 1 January 1975.[26] With regard to this latter resource, it was stipulated, in the decision, that the ceiling on the rate applied to this base would be 1 per cent, and specified that, until 1 January 1975,[27] the rest of the budget would be covered by contributions from the member states.
The different elements of the 1970 decision highlighted here immediately allow us to make several remarks on the nature of the above-mentioned own resources, and in particular on the difference between, on the one hand, agricultural levies and customs duties, and, on the other, VAT. The decision was underpinned by acceptance of a broad concept of own resources,[28] and it does indeed seem clear that whereas agricultural levies and the common customs tariff have many features in common with the ECSC levies, the share of VAT is a “weak” own resource.[29] Indeed, the first two resources are paid by natural and legal persons and are used entirely to finance the organisation’s budget (being closely linked to the competences it exercises); furthermore, their amount does not depend on the financial needs of the organisation itself. The resource consisting of a percentage of VAT revenue, on the other hand, can be likened in many ways to the contributions paid by the states: indeed, on the one hand it is not linked to the competences exercised by the supranational organisation,[30] which is why only a percentage of the tax is considered an own resource, whereas the rest is included in the national budgets; on the other, it was conceived, initially at least, as a residual resource serving to cover the expenditure not covered by the first two,[31] with the result that the size of this resource depended on the organisation’s budgetary requirements.
If the Council Decision 70/243, albeit with the limitations here highlighted, represented a step forward in the direction of financial independence of the supranational level in relation to the member states, given that it decreed the replacement of state contributions with tax resources, the Council’sthird decision on own resources, in 1988,[32] seemed to mark a change of direction and a setback on the journey towards financial independence.[33] In an effort to overcome the impasse created as a result of tensions between the Council and European Parliament over the budget, which had made it impossible, on as many as three occasions, to approve the latter,[34] the Council Decision 88/376, in fact established, alongside customs duties, agricultural levies and the percentage of VAT, the so-called fourth resource, which consisted of a percentage of the member states’ gross national income(GNI).[35]
It was a resource whose function was the same as that previously fulfilled by the percentage of VAT revenue. Indeed, the 1988 Decision on own resources capped the percentage rate applicable to the total GNI of all the member states, and established that the function of the fourth resource would be to cover the part of the budget not covered by the other sources of budget revenue.[36] However, as a result of a progressive reduction in the revenue generated by the common customs tariff and agricultural levies, the fourth resource today covers around 75 per cent of the EU budget, rendering the claim that the EU finances itself through a system of own resources partially meaningless.
It is also necessary to consider the fact that the renewed importance of the state contributions, clearly illustrating the link between the financing of the supranational organisation and the contribution of the single states, encourages the latter, invoking the principle of “just returns” on national contributions, to start weighing up whether or not their contribution is proportionate to the advantages they derive from their membership of the European Union. According to this principle, upheld by the European Council since the Fontainebleau summit of 1984,[37] the countries that are “net contributors” to the EU budget can benefit from a substantial reimbursement of a portion of the difference between their contribution to the system of own resources and the total expenditure incurred by the Union on their territory. Quite clearly, this is a principle that, in essence, is entirely at odds with that of solidarity among Europe’s member states, and in practice comes down to a debit-credit system that in some respects runs counter to the whole idea of a common EU budget.[38]
The limits of the financial autonomy of the supranational organisation — the Community first and the Union subsequently — also emerge when viewing the situation from other angles.
The first is the size of the budget. Indeed, even though it was underlined from as long ago as the McDougall Report in 1977 that, even in a pre-federal phase, the Community budget should amount to at least 5-7 per cent of the member states’ GNI,[39] the size of the EU budget today is negligible compared with that of the national budgets, amounting to little more than 1 per cent of the total GNI of all the member states. Part of the reason for this phenomenon is the mechanism through which the amount of the resources themselves is decided. Indeed, according to the terms of Art. 311 TFEU, own resources — meaning their nature and their amount — are decided unanimously by the Council, “acting in accordance with a special legislative procedure […] and after consulting the European Parliament”, and the “decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements”.[40] It is, therefore, a decision that requires the unanimous agreement of the states, on whose will the amount of the resources available to the organisation depends.
Furthermore, contrary to what happened with the ECSC, these resources are not paid directly into the EU treasury, but rather to the member states,[41] so that, as underlined by the Court of Justice in the Mertens judgement,[42] “it continues to be the task of the member states to undertake prosecutions and proceedings for the purpose of the system of levies and refunds and to continue to take steps to this end vis-à-vis the parties involved”. It follows that, on the one hand, the supranational organisation has no instruments of coercion that it may use to obtain payment of the resources, and on the other, especially as from the introduction of the fourth resource, the own resources feature, in different ways, in the budgets of the member states, where they compete with national expenditure.[43]
The Proposal to Implement Enhanced Cooperation in the Area of Financial Transaction Taxes.
The decisions on own resources that followed[44] Decision 88/376 did not make significant changes to the system of financing the European Union; they merely made adjustments to the provisions relating to the VAT taxable base and the percentage of the states’ GNI to be paid into the EU budget, and clarified the mechanism of correction of budgetary imbalances established for the benefit of the so-called net contributors.
In recent years, however, the economic and financial crisis has prompted a reopening of the debate on whether new own resources should be introduced in order to give the Union greater autonomy from the member states.
In particular, given its role in the onset and development of the crisis, the discussion has centred on the possibility of looking to the financial sector to raise new tax resources for the EU budget.
Indeed, the Commission, in its communication on the EU budget review dated 19 October 2010,[45] provided a non-exhaustive list of the means of financing that could constitute new own resources. This list included a tax on financial transactions, a resource that, like the other new resources mentioned in the communication, should gradually replace the national contributions to the EU budget. An EU financial transaction tax was subsequently indicated as a new own resource in the Commission’s “Proposal for a Council Decision on the system of own resources of the European Union” dated 29 June 2011,[46] which was amended in November of the same year.[47] And the “Amended proposal for a Council regulation laying down implementing measures for the system of own resources of the European Union” of 9 November 2011[48] specifies that the share in the financial transaction tax to be paid into the EU budget shall be two-thirds of the minimum rates set out in the Directive that will establish the tax itself. Thus, ever since it first appeared in the ongoing debate within the European institutions, the financial transaction tax has been seen as closely linked to the financing of the Union.
However, the precise nature of this tax is still under discussion and the process of adopting the Directive on a common system of financial transaction taxation is proving rather complex. Indeed, in the Council meetings of 22 June and 29 July 2012, there emerged strong differences in the opinions of the member states on the proposal presented by the Commission on 28 September 2011[49] which made it clear that it would be impossible to reach an agreement within a reasonable space of time. Eleven member states[50] therefore sent a request, to the Commission, for the implementation of enhanced cooperation in relation to the tax on financial transactions, after which the Commission submitted a proposal[51] to the Council. The latter, in its decision of 22 January 2013,[52] authorised the enhanced cooperation. This development was quickly followed, in February 2013, by a new proposal from the Commission,[53] in which it reiterated that its “Proposal for a Council Decision on the system of own resources of the European Union […] set out that part of receipts generated by the FTT shall constitute an own resource for the EU budget” and that “the GNI-based resource drawn from the participating Member States would be reduced accordingly”. This therefore marked, for the first time in the history of the process of European integration, an intertwining of the issues of differentiated integration and the financing of the EU. Indeed, the proposal was to create an own resource of a fiscal nature to be levied only in certain member states — a resource that, therefore, only these states would pay, at least in part, into the EU budget.
Even though the characteristics of this tax are still under discussion[54] and it is therefore too early to analyse in detail the contents of the above-mentioned documents, we can nevertheless make some brief remarks on the effects that the creation of this new own resource could have in terms of the financial autonomy of the European Union.
From the perspective of the types of resources available to the European Union, this proposal seems to represent a step forward in the direction of a greater level of independence of the supranational organisation from its member states, given that it is designed to replace the national contributions with tax resources. Indeed, as already indicated, if the states participating in the enhanced cooperation were to pay into the EU budget, as is suggested, a share of the tax corresponding to two-thirds of the minimum rate, this would lead to a proportional reduction in the share of GNI that these same states would be required to contribute, with the result that a larger share of the EU budget would be covered by genuine own resources.
However, this very mechanism is the source of a limitation of this new resource. Indeed, introduction of the financial transaction tax, as conceived in the proposals mentioned, would not increase the size of the EU budget. This is because it is a tax that would be paid into the budget only by some of the member states, and if the share of GNI paid by these same states were not proportionally reduced, they would in fact find themselves at a disadvantage, since this would create a situation that would see the states participating in the enhanced cooperation feeding the budget with a larger amount of resources, to be used to cover expenditure that benefits all the member states.
Instead, such a situation would not be created if, as an exception to the budgetary principle of universality,[55] which decrees that all the budgetary resources constitute an indistinct mass that is used to finance all the expenditure, the own resource deriving from the tax on financial transactions were used to finance expenditure relating exclusively to the states that are part of the enhanced cooperation in question, thereby forming an extra resource at European level that benefits only these states (i.e. a resource additional to the ones paid into the general EU budget). Looking at the history of EU funding, it can be seen that this type of solution has already been examined before, even though the precedent to which we refer is not exactly comparable to the hypothesis we are examining here. Art. 184 TFEU, relating to the sector of research and technological development, states that “In implementing the multiannual framework programme, supplementary programmes may be decided on involving the participation of certain Member States only, which shall finance them subject to possible Union participation.” This was in fact the basis for the creation of a complementary research programme on the operation of the high flux reactor (HFR) in Petten, which was funded solely by the Netherlands and France.[56]
However, the solution envisaged by Art. 184 is expressly provided for in the TFEU, and it is also designed to pursue a specific objective, namely the creation of complementary research programmes involving only a small number of states. The financial transaction tax, on the other hand, is conceived as an own resource of a general nature, in the sense that it is not meant for the funding of specific policies involving the participation of only some of the member states. It is therefore hard to imagine that the enhanced cooperation relating to it might be considered to justify a derogation from the principle of universality of the EU budget.
Moreover, additional confirmation that this new own resource, as it is currently configured in the aforementioned proposals for enhanced cooperation and for a Council decision on the system of own resources, would not significantly alter the financial autonomy of the European Union is provided by the fact that it would be fully integrated into the system of own resources still in force, which presents the limitations we have already illustrated relating to the method of deciding and collecting these resources.[57]
Economic and Monetary Union and the Commission’s “Blueprint for a Deep and Genuine Economic and Monetary Union”.
Instead, the prospects for creating an additional budget for the eurozone, set out in two reports by the presidents of the European Council, Commission, Eurogroup and European Central Bank, published respectively in June and October 2012,[58], [59] and in the Communication from the Commission of 28 November 2012 entitled “A blueprint for a deep and genuine economic and monetary union”,[60] have to be viewed in an entirely different light.
These are documents that should be considered part of efforts to reform the Economic and Monetary Union and that identify the steps forward that, in the short, medium and long term, can be taken towards its completion. To evaluate the extent to which they are geared at promoting greater financial autonomy at supranational level, we need to examine briefly the features of the Economic and Monetary Union, and in particular the elements that distinguish it from the other forms of differentiated integration[61] that have emerged during the process of European integration to date.
Even though the single currency has been said to be a form of enhanced cooperation ahead of its times, the Economic and Monetary Union is, among the various forms of flexibility envisaged by the Treaties, absolutely unique.[62] It is in fact the only form in which certain provisions of the Treaties are applied only to a predefined group of states, i.e. those that share the single currency, and give rise to specific organs for the management of monetary policy,[63] which exclude the states that have kept their own national currencies. All other forms of differentiated integration allowed by the Treaties[64] are indeed characterised by the fact that they use the institutional structure of the Union, without giving rise to new organs, and in many cases — that of enhanced cooperations primarily — concern groups of states that differ according to the area with which the cooperation is concerned.[65]
Moreover, from the end of the 1990s, and in particular following the entry into force of the Lisbon Treaty, the features distinguishing the Economic and Monetary Union from the other forms of differentiated integration became more pronounced, to the point that the EMU can be considered a sort of subsystem operating within the European Union.[66] Indeed, even though it was always envisaged, from the time of the creation of the single currency, that the voting rights of Council members representing member states with a derogation should be suspended when the Council is called upon to adopt decisions relating to monetary policy (Art. 139 TFEU), meaning that only eurozone member states can vote, a resolution adopted by the European Council in Luxembourg[67] gave rise to the Eurogroup,[68] an informal meeting of the finance ministers of the eurozone member states, while the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union[69] (the so-called fiscal compact), led to the institutionalisation of the Eurosummit, a European Council-like meeting of eurozone states. Despite not constituting new EU institutions, whose creation would require a revision of the Treaties in accordance with Art. 48 TEU, and despite not being equipped with decision-making powers, these organs emphasise the differentiation between states without a derogation and those with a derogation, facilitating the adoption of common stances by the former.
The amendment of Art. 136 TFEU contained in the Lisbon Treaty, which allows the Council, operating in restricted composition, to adopt measures geared at reinforcing the measures designed to strengthen the coordination and surveillance of budgetary discipline and to develop guidelines for the economic policies of the member states whose currency is the euro, subsequently allowed the adoption of other measures,[70] a prominent one being the Treaty establishing the European Stability Mechanism,[71] which was adopted following an amendment, through the simplified revision procedure,[72] of Art. 136 itself.
However, the progressive institutionalisation of the EMU has never impacted on the financing of the European Union. Rather than separating the revenue generated by the eurozone states and allocating it to expenditure relating to these states,[73] it was decided from the very creation of the single currency that there should be no derogation from the principle of universality of the EU budget.
The proposals to create an additional budget for the eurozone financed with its own tax resources thus represent the first attempt to equip the eurozone with its own autonomous resources and raise, for the first time, this issue of the relationship between the financing of the EMU and the EU budget.
Despite the very general nature of the proposals in question, it is clear to see that the perspective adopted by the documents of the four presidents and of the Commission is radically different from that of the proposed enhanced cooperation in the areas of financial transaction taxation and of the June/November 2011 “Proposal for a Council Decision on the system of own resources”. Indeed, whereas the latter are still very much within the mold of the existing system of financing the European Union, not substantially altering its relationship with its member states, the proposals to create an additional budget for the eurozone, based on its own fiscal capacity, imply, providing they are developed fully, a transfer of sovereignty from the eurozone member states to the supranational level and thus the creation of a supranational government of the economy.
The Communication from the Commission states, in fact, that the additional budget and fiscal capacity should be accompanied by the creation of a dedicated budgetary and own resources procedure, and a new taxation power or power to raise revenue by borrowing on the markets, and by the creation of an EMU Treasury within the Commission. Furthermore it also states that the “progressive further integration of the euro area towards a full banking, fiscal and economic union will require parallel steps towards a political union with a reinforced democratic legitimacy and accountability.”[74]
The words of the Commission thus provide confirmation of the close link that exists between an organisation’s financial and political autonomy, and underline the fact that true financial autonomy not only entails the replacement of the contributions of the member states with fiscal resources, but ultimately requires that the organisation in question be invested with the powers of a sovereign entity.
The Possible Routes Towards Completion of the Economic and Monetary Union.
Leaving aside hypotheses regarding the institutional structure of the Economic and Monetary Union following such a transformation, we can nevertheless comment on the steps that will draw it closer to this objective, which were set out in some detail by the Commission in its Communication.
In general, it should be pointed out that the Commission’s approach is characterised by a tendency to exploit all the possibilities offered by the existing Treaties, to the point that their amendment should be contemplated “only where an action indispensable for improving the functioning of the EMU cannot be constructed within the current framework.” From this perspective, one step in the direction of a eurozone fiscal and budgetary capacity, according to the Commission, could be to introduce a convergence and competitiveness instrument able to provide financial support for the rapid implementation of structural reforms in the eurozone countries, in such a way as to reduce or eliminate the political and economic disincentives that constitute obstacles in this regard.
On the subject of the route to follow in order to create such an instrument, the Commission clarifies first of all that it would be “established by secondary legislation” and that the “financial contributions necessary to the instrument could be based on a commitment of the euro area Member States or a legal obligation to that effect enshrined in the EU’s own resources legislation. Contributions should be included in the EU budget as assigned revenues.”[75]
The first element needing to be underlined therefore concerns the fact that, unlike what was proposed for the financial transaction tax, the creation of a convergence and competitiveness instrument able to contribute of the completion of the EMU would imply a derogation from the principle of universality of the EU budget, given that only the eurozone states would be involved in financing it and the resources would be included in the EU budget as assigned revenues. In this way the eurozone would have at its disposal additional resources that could be used to meet the needs of the states belonging to it.
This first step, as underlined by the Commission, could be taken without needing to modify the Treaties, and would be possible through recourse to either of two alternative legal provisions: Art. 136 TFEU or Art. 352 TFEU (“if necessary by enhanced cooperation”). Without attempting to examine this complex question here, it can nevertheless be remarked that, of the two routes indicated by the Commission, the first (recourse to Art. 136 TFEU) seems to be the one better suited to the prospect of a eurozone equipped with greater financial autonomy. One feature of this provision is, indeed, the fact that it already defines the framework — the euro area — in which certain measures concerning budgetary discipline, economic policy guidelines and, ultimately, a stability mechanism, may be adopted. For this reason, it seems to represent a sort of opening through which the eurozone could equip itself with the instruments necessary in order to complete the Economic and Monetary Union, with the sole condition that the economic policy guidelines drawn up by the Council acting in restricted composition should be compatible with those adopted for the Union as a whole. The enhanced cooperation,[76] on the other hand, is an instrument that seems better suited to forms of cooperation established in limited sectors between groups of states that will, each time, be different and that, precisely because it is conceived as an instrument to promote à la carte integration, is subject to a number of rather[77] strict limitations that could constitute an obstacle[78] in the way of consolidation of the eurozone.
* This article has already been published in the review Il Diritto dell’Unione Europea, no. 4 (2013), p. 793 ff..
[1] It is explained in the present article that the resource consisting of a percentage of the member states’ GNI now accounts for 75 per cent of the European Union budget.
[2] Council decision no. 2013/52/EU of 22 January 2013, authorising enhanced cooperation in the area of financial transaction tax, in OJEU L 22 of 25.1.2013, p. 11.
[3] COM(2012) 777 final.
[4] On this point, see, among others, Q. Wright, The mode of financing unions of States as a measure of their degree of integration, International Organization, 11 (1957), p. 30 and ff.; C.D. Ehlermann, The financing of the Community: the distinction between financial contributions and own resources, Common Market Law Rev., 19 (1982), p. 517. The relationship between the modalities by which organisations are financed and their degree of independence from states generally receives little attention in the literature, see N. Parisi, Il finanziamento delle organizzazioni internazionali, Milan, Giuffré, 1986, p. 4 and ff..
[5] On the problems raised by financing through state contributions, see G. Olmi, Les ressources propres aux Communautés européennes, Cahiers droit eur., 7 (1971), p. 381 and 394. On the other hand, the risk of states deciding arbitrarily not to pay their contributions does not constitute a noteworthy argument according to G. Tesauro, Il finanziamento delle organizzazioni internazionali, Naples, Jovene, 1969, p. 10, who maintains that the financial support of states might be withdrawn only if they became unwilling to be part of the organisation.
[6] Art. 201 of the EEC Treaty stipulated, in fact, that the member states’ contributions, originally the Community’s only source of financing, should be replaced with “own resources”.
[7] In this sense, see for all G. Olmi, Les ressources…, op. cit., p. 379 and ff., in particular p. 395. For further references, see C.D. Ehlermann, The Financing…, op. cit., p. 578 and ff..
[8] Financing the Community budget: the way ahead, COM(78) 531. On this point, see A. Potteau, Recherches sur l’autonomie financière dans l’Union européenne, Paris, Dalloz, 2004, p. 75.
[9] In this sense, see for all G. Isaac, La notion de ressources propres, in Les ressources financières de la Communauté européenne, edited by G. Isaac, Paris, Economica.,1986, p. 70 and ff., in particular p. 76 and ff., who states that the concept of "own resources" is "une fausse notion claire" (p. 70).
[10] On the connection between own resources and the ability of the Community to determine their amount, see the European Parliament resolution on the Council’s provisions regarding: — replacement of the member states’ contributions with Community own resources; — the amendment of some budgetary provisions of the Treaties establishing the European Communities and of the Treaty establishing a Single Council and a Single Commission of the European Communities in OJ C 65 of 5.6.1970, p. 32.
[11] In this sense, see G. Isaac, La notion…, op. cit., p. 76 and ff.; V. Duissart, Le financement de l’Union européenne: nouvelles problématiques à l’orée du XXème siècle, in Mélanges en hommage à Guy Isaac, 50 ans de droit communautaire, edited by M. Blanquet, Toulouse, Presses de l’Université de sciences sociales de Toulouse, 2004, p. 889 and ff., in particular p. 891. On this point, it is interesting to refer to the debates in the member states’ national parliaments during the ratification of the Council decision of 21 April 1970, on the creation of Community own resources, and of the Treaty of Luxembourg of 22 April 1970, on the extension of the European Parliament’s budgetary powers (reported in Parlamento Europeo, Direzione generale della documentazione parlamentare e dell’informazione, Le risorse proprie delle Comunità europee e i poteri del Parlamento europeo in materia di bilancio, I dibattiti di ratifica, Luxembourg, 1971, in particular p. 69 and 136). The connection between sovereignty and financial autonomy, and therefore the parallelism between financial autonomy and political autonomy, is also highlighted by G. Tesauro, Il finanziamento…, op. cit., p. 220, who notes that the very nature of international organisations implies that they cannot be financed in the manner and to the extent desired by the member states.
[12] For an overview of the functioning of the ECSC, see P. Reuter, La Communauté européenne du Charbon et de l’Acier, Paris, Librairie générale de droit et de jurisprudence, 1953; H.L. Mason, The European Coal and Steel Community: Experiment in Supranationalism, The Hague, Nijhoff, 1955; D. Vignes, La Communauté européenne du Charbon et de l’Acier, Paris, Librairie générale de droit et de jurisprudence, 1956; R. Monaco, Caratteri istituzionali della CECA, Riv. dir. int., 41 (1958), p. 9 and ff.; F. Benvenuti, La CECA ordinamento sovrano, Diritto internazionale, (1961), p. 297 ff. In accordance with the provisions of its establishing Treaty, the ECSC expired on 23 July 2002, fifty years after it had come into force. The ECSC was initially provided with estimates of administrative expenditure and an operating budget, both subsequently merged into the common budget (ECSC, EEC and Euratom) on the signing of the Merger Treaty in Brussels on 8 April 1965. On this point, see G. Tesauro, Il bilancio delle Comunità europee, Dir. com. sc. int., 19 (1980), p. 58 and ff., in particular p. 59.
[13] The nature of the levies, and particularly their nature as a supranational tax, has been a subject of discussion in the literature. In particular, on the idea that levies had a fiscal but not supranational nature, see G. Tesauro, Il finanziamento…, op. cit., p. 192 and ff. For an opposite view see, among others, A. Coppé,La Communauté européenne du charbon et de l’acier, in Aspects financiers de l’intégration économique internationale,The Hague, Van Stockum,1953, p. 178 and ff., in particular p. 179; G. Olmi, Les ressources…, op. cit., p. 387.
[14] Cf. J. Molinier, Les ressources propres dans les documents budgétaires et comptes nationaux, in Les ressources…, op. cit., p. 79and ff., in particular p. 83.
[15] On this point, see A. Duassin, Le régime financier des Communautés, in Droit des Communautés européennes, edited by W.J. Ganshof van der Meersch, Brussels, Larcier, 1969, p. 461 and ff., in particular p. 476.
[16] In practice, especially in the event of severe crises in the coal and steel sectors and of a subsequent failure of levies to cover the organisation’s expenditure, it was necessary, in some cases, to integrate ECSC’s budget with contributions from the states. On this point, see J.-P. Jacqué, La décision en matière de ressources propres, in Les ressources…, op. cit., p. 95 and ff., in particular note 1.
[17] On this point, see the Artzinger Report on the ECSC’s financial and budgetary problems, submitted during the examination of the annexes to the Fifteenth General Report on the Activities of the ECSC (doc. 72/67), excerpts of which are reproduced in Parlement européen, Les ressources propres aux Communautés européennes et les pouvoirs budgétaires du Parlement européen, Luxembourg, 1970, p. 26 and ff. In the European Union, on the other hand, any surplus in own resources over expenditure cannot be allocated to reserves, but must be carried forward to the following financial year.
[18] Cf. G. Tesauro, Il finanziamento…, op. cit., p. 186 and ff.; A. Daussin, Le régime…, op. cit., p. 464 and p. 468. According to A. Potteau, Recherches…, op. cit., p. 94, on the basis of Art. 95, par. 3 of the Treaty of Paris, which established that, in exceptional circumstances represented by “unforeseen difficulties which are brought out by experience in the means of application of the… Treaty” or by “a profound change in the economic or technical conditions which affects the common coal and steel market directly,” the High Authority and the Council could adapt the rules concerning the exercising by the former of the powers which were conferred upon it, it was conceivable that the High Authority could obtain further financial resources besides those provided under the terms of the Treaty, for instance through loans, an instrument which generally could be used only in order to provide loans to companies and not in order to finance the organisation.
[19] As remarked by A. Duassin, Le régime…, op. cit., p. 469, these provisions “rappellent à beaucoup d’égards celles que l’on trouve dans les régimes fiscaux nationaux. C’est ce qui a permis de dire que le prélèvement constituerait le premier impôt européen.”On this point, see N. Parisi, Il finanziamento…, op. cit., p. 122. Since the member states were entirely responsible for imposing the levy, as the tax liability was imposed by the founding Treaty, the High Authority’s decisions became enforcement orders only after the member states had appended the enforcement clause, and the powers of the High Authority’s agents responsible for inspections were equivalent to those of the states’ fiscal agents only because the member states had recognised those powers, see G. Tesauro, Il finanziamento…, op. cit., p. 184 and ff. For an opposite view, see A. Coppé, La Communauté…, op. cit., p. 179; G. Olmi, Les ressources…, op. cit., p. 204.
[20] Cf. G. Spenale, Introduction, in Parlement européen, Les ressources propres, op. cit., p. 14.
[21] On the difference between the states’ contributions and ECSC’s levies, see N. Parisi, Il finanziamento…, op. cit., p. 54.
[22] This procedure should have been implemented by 31 December 1969, the expiry date of the transitional period.
[23]Council Regulation no. 25 on the financing of the common agricultural policy in OJ 30 of 20.4.1962, p. 91. On this point, see G. Olmi, Les ressources…, op. cit., p. 402 and ff..
[24] Council Decision 70/243 of 21 April 1970 on the replacement of financial contributions from member states with the Communities' own resources in OJ L 94 of 28.4.1970, p. 19. As remarked by J.-C. Gautron, Fédéralisme fiscal et fédéralisme budgétaire d’un mythe à l’autre, in Mélanges en hommage à Guy Isaac. 50 ans de droit communautaire, Tome 2, Toulouse, Presses de l’Université de sciences sociales de Toulouse, 2004, p. 877 and ff., in particular p. 879, the creation of own resources was necessary also in view of the future accession of Great Britain, which promised to lead to difficult negotiations on budgetary matters.
[25] Pursuant to Art. 2, par. 1, letter b) of the Council Decision of 21 April 1970, the term “customs duties” indicates common customs tariff duties and other duties “established or to be established by the institutions of the communities in respect of trade with non-member countries”.
[26] On the progressive implementation of the own resources system see G. Olmi, Les ressources…, op. cit., p. 412.
[27] In fact, the sixth VAT Directive 77/388/EEC (Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the member states relating to turnover taxes – Common system of value added tax: uniform basis of assessment, in OJ L 145 of 13.6.1977, p. 1) was not adopted until 17 May 1977. The provisions included in the Decision of 1970 on own resources regarding the VAT resource, therefore, were only applied as of 1 January 1979. On this point, see G. Olmi, Les ressources…, op. cit., p. 415 and ff.; C.D. Ehlermann, The financing…, op. cit., p. 574; J.-L. Chabot, G. Guillermin, La rétention des ressources propres de la part des Etats membres, in Les ressources…, op. cit., p. 87 and ff., in particular p. 91.
[28] According to V. Duissart, Le financement…, op. cit., p. 890, none of the resources mentioned in the Decision of 1970 can be properly defined as an “own resource”. A strict interpretation of the term “own resources”, would in fact include only the tax on Union officials’ salaries, bank interests, penalties for late payments and fines.
[29] This expression is used by C.D. Ehlermann, The Financing…, op. cit., p. 574.
[30] In order to underline the connection existing between value-added tax and financing of the Community, the Commission had initially proposed that the national VAT share as well as the share of VAT to be paid into the Community budget as an own resource should be indicated on every sales receipt. On this point, see J. Haug, A. Lamassoure, G. Verhofstadt, D. Gros, P. De Grauwe, G. Ricard-Nihoul, E. Rubio, Europe for Growth. For a Radical Change in Financing the EU, Brussels, CEPS Paperbacks, 2011, p. 7.
[31] On this point, see G. Olmi, Les ressources…, op. cit., p. 409 and ff.. As remarked by A. Brancasi, Il bilancio della Comunità europea, in Trattato di diritto amministrativo europeo, edited by M. Chiti, G. Greco, Milan, Giuffré, 2007, p. 611 and ff., in particular p. 616 and 620, agricultural levies and customs duties do not pursue strictly fiscal purposes, given that they are intended to be used for the implementation of Community policies. For this reason, the acts regulating them are the ones relating to the policies involved, not to the budget. On the contrary, first VAT revenue and then the fourth resource, being residual resources and therefore having to correspond to the overall expenditure and amount of the remaining revenues, are not only regulated by the “substantive” law, but also based on the Union’s budget. In this sense, see also C.D. Ehlermann, The Financing…, cit., p. 584, who distinguishes between expenditure-oriented and revenue-oriented resources.
[32] Council Decision of 24 June 1988 on the system of the Communities' own resources, in OJ L 185 of 15.7.1988, p. 24. In 1988, the “Delors I package” introduced the concept of financial perspectives, a mid-term programming instrument designed to establish, for the coming 5-7 years, spending limits and guidelines for the development of the annual budgets. Financial perspectives have now been replaced by the multiannual financial framework, introduced by Art. 312 TFEU. On this point, see L.S. Rossi, La dinamica interistituzionale nella definizione del bilancio comunitario, Il Diritto dell'Unione Europea, 1 (2006), p. 179 and ff., in particular p. 189 and ff.; G. Rivasecchi, Autonomia finanziaria e procedure di bilancio della Comunità europea, in Trattato, op. cit., p. 653 and ff., in particular p. 675 ff..
[33] According to M. Dévoluy, L’architecture des politiques économiques européennes, in Les politiques économiques européennesedited by M. Dévouly, Paris, Editions du Seuil, 2004, p. 52 and ff. and G. Rivasecchi, Autonomia finanziaria…, op. cit., p. 655, the European integration process would have led the European Union to gradually acquire financial autonomy. However, this statement seems to refer more to the gradual increase in the powers of the European Parliament with respect to the budget approval process, than to the own resources system.
[34] On this point, seeJ. Haug, A. Lamassoure, G. Verhofstadt, D. Gros, P. De Grauwe, G. Ricard-Nihoul, E. Rubio, Europe for Growth…, op. cit., p. 10.
[35] Pursuant to Art. 2, par. 1, letter d) of the Council Decision 88/376, op. cit., the fourth resource consists of “the application of a rate, to be determined under the budgetary procedure in the light of the total of all other revenue, to the sum of all the Member States’ GNP established in accordance with Community rules to be laid down in a Directive…”. The third decision on own resources also establishes the reduction of the VAT base to 55 per cent of each member state’s GNP.
[36] The establishment of the fourth resource implied that the rate to be applied to the taxable VAT base was calculated directly according to the Decision on own resources and no longer through the budgetary procedure. On this point, see A. Brancasi, Il bilancio…, op. cit., p. 618. On the relationship between fourth resource and the VAT resource, see L. Kolte, The Community budget: new principles for finance, expenditure planning and budget discipline, Common Market Law Rev., 25 (1988), p. 487 and ff., in particular p. 490 ff..
[37] S. Saurel, Le budget de l’Union européenne, Paris, La documentation française, 2010, p. 162.
[38] Initially, only the United Kingdom benefited from this correction; however, since the Council Decision 2000/597/EC of 29 September 2000 on the system of the European Communities’ own resources, in OJ L 253 of 7.10.2000, p. 42, it has also been applied to Germany, Austria, the Netherlands and Sweden. On this point, see G. Isaac, Le problème de la contribution budgétaire du Royaume-Uni, Rev. trim. dr. eur. 20 (1984), p. 107 and ff.; J. Ørstrøm Møller, La notion de contribution nette et le “système des ressources propres”, in Les ressources…, op. cit., edited by G. Isaac, p. 275 and ff.; V. Duissart, Le financement…, op. cit., p. 903 and ff.; S. Saurel, Le budget…, op. cit., p. 173 and ff. As remarked by N. Parisi, Il finanziamento…, op. cit., p. 255, at least in principle, organisations financed by levies — such as the ECSC — should not apply the principle of fair return.
[39] P. Llau, La coordination des dépenses publiques d’allocation et de redistribution face au fédéralisme budgétaire en UEM, Revue d’économie financière, 12 (1998), p. 213 and ff., in particular p. 215; P-A. Muet, Union monétaire et fédéralisme, Revue de l’OFCE, n. 55 (October 1995), p. 151 and ff..
[40] In the draft Treaty establishing the European Union, submitted by the Parliament on 14 February 1984 (Spinelli Project), in OJ C 77 of 19.3.1984, p. 33, Art. 71 stipulated that the European Union might, by an organic law, amend the nature or the basis of assessment of existing sources of revenue or create new ones. The creation of new resources did not depend, therefore, on the unanimous agreement among member states, since the organic law would have required a qualified majority resolution of the Council, and Art. 71 did not provide for any subsequent approval by the states in accordance with their own constitutional procedures. Almost identical to the current form of treaties was, on the other hand, the provision included in the draft Treaty establishing a Constitution for Europe which, in Art. I-54, stipulated that own resources should be decided unanimously by the Council, after consulting the European Parliament, and that this provision should come into force only after approval by member states in accordance with their own constitutional rules. According to J.-P. Jacqué, Droit institutionnel de l’Union européenne, 7me éd., Paris, Dalloz, 2012, p. 211 and ff., the Decision on own resources, despite its peculiar implementation procedure, requiring its approval by the member states in compliance with their own constitutional rules, is a European Union act and, therefore, can be subject to the preliminary ruling procedure. Since its entry into force requires the member states’ intervention, however, it would be a primary law and, as such, not amenable to annulment.
[41] In order to cover the collection costs, initially the European Community, after having ascertained that the collection had been performed properly, returned 10 per cent of the resources to states as reimbursement of collection costs. This method, however, was soon modified in such a way that the states could directly withhold that percentage, which today has increased to 25 per cent. On this point, see C. Federkeil, G. Di Vita, Du remboursement forfaitaire à la retenue de 10% par les Etats membres pour frais de collecte et de perception des ressources propres, Rev. Marché Commun, 32 (1989), p. 408; A. Potteau, Recherches…, op. cit., p. 144; S. Saurel, Le budget…, op. cit., p. 163. The amended proposal for a Council Decision on the system of own resources of the European Union of 9 November 2011, COM(2011) 739 final, reduces the percentage to be withheld as reimbursement of collection costs back to 10 per cent.
[42] Court of Justice, 4 April 1974, cases 178, 179 and 180/73, Mertens.
[43] On this point, see J. Molinier, Les ressources…, op. cit., p. 79 and ff.; J. Haug, A. Lamassoure, G. Verhofstadt, D. Gros, P. De Grauwe, G. Ricard-Nihoul, E. Rubio, Europe for Growth…, op. cit., p. 12.
[44] Council Decision 94/728/EC on the system of the European Communities’ own resources (OJ L 293 of 12.11.1994, p. 9); Council Decision 2000/597/EC, op. cit.; Council Decision 2007/436/EC on the system of the European Communities’ own resources (OJEU L 163 of 23.6.2007, p. 17).
[45] COM(2010) 700 final.
[46] COM(2011) 510 final.
[47] COM(2011) 739 final, op. cit.. On 27 June 2013 a political agreement was reached between the European Parliament and the Council on the multiannual financial framework for the period 2014-2020, which provides for the establishment of a group of experts, appointed by the Council, the European Parliament and the Commission, with a mandate to develop a draft revision of the own resources system.
[48] COM(2011) 740 final.
[49] COM(2011) 594 final.
[50] Belgium, Germany, Estonia, Greece, Spain, France, Italy, Austria, Portugal, Slovenia and Slovakia. As stated in the Rapport d’information sur le projet de taxe sur les transactions financières submitted to the French Senate on 21 December 2012 by Senator Fabienne Keller on behalf of the European Affairs Committee (available at http://www.senat.fr/rap/r12-259/r12-259.html), the Netherlands would agree to become part of the enhanced cooperation only if the revenue from the financial transaction tax were not used as own resource by the Union.
[51] COM(2012) 631 final/2.
[52] Council Decision 2013/52/EU of 22 January 2013 authorising enhanced cooperation in the area of financial transaction tax, in OJEU L 22 of 25.1.2013, p. 11. On the mechanism of enhanced cooperation, see G. Gaja, How Flexible is Flexibility under the Amsterdam Treaty, Common Market Law Rev., 35 (1998), p. 855 and ff.; C.D. Ehlermann, Differentiation, Flexibility, Closer Cooperation: the New Provisions of the Treaty of Amsterdam, Europ. Law Journal, 4 (1998), p. 246 and ff.; U. Kortenberg, Closer Cooperation in the Treaty of Amsterdam, Common Market Law Rev., 35 (1998), p. 833 and ff.; H. Bribosia, Les coopérations renforcées au lendemain du Traité de Nice, Rev. dr. Un. eur., 11(2001), p. 111 and ff.; A. Cannone, Le cooperazioni rafforzate. Contributo allo studio dell’integrazione differenziata, Bari, Cacucci, 2005; L.S. Rossi, L’intégration différenciée au sein et à l’extérieur de l’Union: de nouvelles frontières pour l’Union?, in Genèse et destinée de la Constitution européenne, edited by G. Amato, H. Bribosia, B. De Witte, Brussels, Bruylant, 2007, p. 1219 and ff.; V. Constantinesco, Les coopérations renforcées, dix ans après: une fausse bonne idée, in Mélanges en hommage à Georges Vandersanden, edited by A. De Walsche, Brussels, Bruylant, 2008, p. 241 and ff..
[53] Proposal for a Council Directive implementing enhanced cooperation in the area of financial transaction tax, COM(2013) 71 final.
[54] On 18 April 2013, the United Kingdom appealed for annulment of the Council Decision authorising enhanced cooperation (Decision 2013/52/EU, op. cit.) (case C-209/13), but its action was dismissed by the Court with its judgment of 30 April 2014. The Council’s Legal Service also issued an opinion on the new proposed Directive (COM(2013) 71 final, cit.); according to this opinion (13412/13 of 6 September 2013), the proposal would be incompatible with the European Union law and, in particular, with Art. 327 TFEU.
[55] This principle appears for the first time in the Decision on own resources no. 88/376, op. cit., specifically in Art. 6.Derogations from this principle generally concern the allocation of particular resources deriving from specific sectors to the financing of these same sectors, but these are all sectors and policies that involve all the member states.
[56] Explicit reference to this programme is made in the Decision on own resources no. 88/376, op. cit. On this point, see S. Marciali, La flexibilité du droit de l’Union européenne, Brussels, Bruylant, 2007, p. 410 and ff..
[57] Furthermore, since this tax is not strictly connected with competences exercised by the European Union and, as a result, is paid only partially into its budget, it is more akin to the VAT resource than to customs duties and agricultural levies.
[58] Towards a genuine economic and monetary union, Report by the President of the European Council Herman van Rompuy (in close cooperation with the Presidents of the Commission, the Eurogroup and the European Central Bank), 25.6.2012.
[59] Towards a genuine economic and monetary union, Interim Report by the President of the European Council Herman van Rompuy (in close cooperation with the Presidents of the Commission, the Eurogroup and the European Central Bank), 12.10.2012.
[60] COM(2012) 777 final.
[61] On differentiated integration, a subject extensively debated in the literature, see for all C. Guillard, L’intégration différenciée dans l’Union européenne, Paris, 2006; S. Marciali, La fléxibilité…, op. cit..
[62] On the peculiarities of the EMU compared with other forms of differentiated integration, see for all O. Clerc, La gouvernance économique de l’Union européenne, Paris, 2012; S. Marciali, La flexibilité…, op. cit., p. 370 and ff.. As highlighted by P. Manin, Les aspects juridiques de l’intégration différenciée, in Vers une Europe différenciée? Possibilité et limite edited by P. Manin, J.-V. Louis, Brussels, Pedone, 1996, p. 13 and ff., in particular p. 15, in the case of EMU, differentiation depends on factors which are beyond the will of the single state, given that once the competent institutions have ascertained that the state meets the requirements, it automatically enters third stage of EMU.
[63] Cf. J.-V. Louis, Differentiation and the EMU, in The many faces of differentiation in EU law, edited by B. De Witte, D. Hanf, E. Vos, Antwerp, Intersentia, 2001, p. 43 and ff., in particular p. 47.
[64] These do not include forms of flexibility that are not covered by Treaties, such as the Schengen Agreement, which actually created new specific organs.
[65] The two enhanced cooperations implemented so far actually involve different states. The enhanced cooperation in the area of the law applicable to divorce and legal separation (EU Regulation 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, in OJ L 343 of 29.12.2010, p. 10) involves Austria, Belgium, Bulgaria, France, Germany, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Spain, Slovenia and Hungary. The enhanced cooperation regarding the European unitary patent (EU Regulation 1257/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, in OJEU L 361 of 31.12.2012, p. 1, and EU Regulation 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, in OJEU L 361 of 31.12.2012, p. 89), instead, includes all the member states except Spain and Italy.
[66] See S. Marciali, La flexibilité…, op. cit., in particular p. 396, where it is stated that EMU, before the entry into force of the Lisbon Treaty, could have been identified as the fourth pillar of the European Union.
[67] OJ C 35 of 2.2.1998, p. 1. In the resolution, however, the name Eurogroup was not yet used. Today, the Eurogroup is also the subject of Protocol no. 14, where its composition is described and the election process of its President is established.
[68] On the possible evolution of the Eurogroup into an ECOFIN Council for the eurozone see J.-V. Louis, The Economic and Monetary Union: Law and Institutions, Common Market Law Rev., 41 (2004), p. 575 and ff., in particular p. 585.
[69] The Treaty on Stability, Coordination and Governance in the Economic and Monetary Union signed in Brussels on 2 March 2012 by the Kingdom of Belgium, the Republic of Bulgaria, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden.
[70] EU Regulation 1173/2011 on the effective enforcement of budgetary surveillance in the euro area (OJEU L 306 of 23.11.2011, p. 1) and EU Regulation 1174/2011 on enforcement measures to correct excessive macroeconomic imbalances in the euro area (OJEU L 306 of 23.11.2011, p. 8). Art. 136 TFEU served as the legal basis also for the adoption of decisions relating to Greece, the so-called Greek loan facility. On this point, see A. Viterbo, 136, in Codice dell’Unione europea operativo edited by C. Curti Gialdino, Naples, Simone, 2012.
[71] Treaty establishing the European Stability Mechanism, signed in Brussels on 2 February 2012 by the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Grand Duchy of Luxembourg, Malta, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Republic of Finland.
[72] 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, in OJEU L 91 of 6.4.2011, p. 1.
[73] On this point, see S. Marciali, La flexibilité…, op. cit., p. 410.
[74] COM(2012) 777 final, p. 14.
[75] See also the Communication from the Commission to the European Parliament and the Council Towards a deep and genuine economic and monetary union. The introduction of a convergence and competitiveness instrument, COM(2013) 165 final.
[76] On the other hand, the initiative to establish an enhanced cooperation can only come from the member states that are interested in this cooperation. The vision outlined by the Commission in the Communication mentioned above (use of Art. 352 of the TFEU if necessary by enhanced cooperation) could not therefore be the subject of a Commission proposal.
[77] Pursuant to Art. 20 TEU and Art. 326 and ff. TFEU, enhanced cooperations shall not concern areas of exclusive competence of the EU; they shall promote the realisation of the European Union’s goals, protect its interests and enhance its integration process; they shall involve at least nine member states and be established only if their goals cannot be achieved within a reasonable period of time by the Union as a whole; they shall comply with the Treaties and Union law; they shall not undermine the internal market or economic, social and territorial cohesion, nor constitute a discrimination in trade between member states, nor shall they distort competition between them; they shall respect the competences, rights and obligations of the member states not participating in them; they shall be open to all the member states that wish to participate.
[78] In this sense see J.-V. Louis, Differentiation and the EMU, in The many faces of differentiation in EU law, edited by B. De Witte, D. Hanf, E. Vos, Amsterdam-Oxford-New York, Intersentia, 2001, p. 43 and ff., in particular p. 62; O. Clerc, La gouvernance…, op. cit., p. 484 and ff., who points out, in particular, the difficulties in envisaging, through the instrument of enhanced cooperation, a strengthening of the role played by the Eurogroup.
