Repasi, R. (René)

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European Research Centre for Economic and Financial Governanceeuro-cefg.euRESEARCH FELLOWSFabian AmtenbrinkErasmus University Rotterdam (Scientific Director EURO-CEFG)Casper de VriesErasmus University RotterdamStefaan van den BogaertLeiden UniversityMatthias HaentjensLeiden UniversityMarkus HaverlandErasmus University RotterdamKlaus HeineErasmus University RotterdamMadeleine HosliLeiden UniversityAlessio M. PaccesErasmus University RotterdamErik PruytDelft University of TechnologyRené RepasiErasmus University Rotterdam (Scientific Coordinator EURO-CEFG)Citizens, populism and politicisation:European economic governance and beyondRotterdam, 18 May 2017Cross-cutting Crises: Comparing Euro-Crisis and Migration Crisis. A Legal Perspective.Introduction  Comparing Euro-Crisis and Migration Crisis– The so-called ‘Euro-Crisis’– The ‘Migration Crisis’ The contribution of EU law to the lack of efficiency of EU crisis responses Comparing EU law in ‘crisis times’ with EU law in ‘normal times’ ConclusionsEuro-Crisis The so-called ‘Euro-Crisis’– Multiple crises• Crisis of financial regulation (cf. subprime mortgage crisis ‘infects’ EU banks)• Crisis of lack of economic policy coordination (cf. the creation of ‘bubbles’ such as the housing bubble in Spain or the ‘financial institutions bubble’ in Cyprus and Ireland)• Crisis of excessive legacy government debt and deficit (cf. Greek Debt Crisis)– Crisis Responses• Bailing-out ‘systemically relevant’ credit institutions• Stimulating interbank lending• Stimulating (private) demand and (private) investments• Providing financial assistance to Member StatesEuro-Crisis The so-called ‘Euro-Crisis’– Legal Framework• Economic Policy Coordination (Article 121 TFEU) (preventing excessive deficts)• Excessive Deficit Procedure (Article 126 TFEU) (preventing threats to fiscal stability)– Naming and Shaming– Market-based enforcement – Fines• Monetary Policy (maintaining price stability)– Legally binding, centralised decision-making (ESCB)– Working method: Increasing/decreasing money supply– Tools: Open market operations, minimum reserves, ‘lender of last resort’ (for banks)Euro-CrisisCrisis Response Member States EUBailing-out ‘systemically relevant’ credit institutionsFinaniancial means to bail-out No financial means to bail-out (due to limited budgetary capacities)COM: veto player through EU State  aid controlStimulating interbank lendingCleaning balance sheets of banks:• bail-out• state garantueesNo financial means to bail-out (due to limited budgetary capacities)COM: veto player through EU State  aid controlECB: Increase of liquidityStimulating (private) demand and (private) investmentsFiscal PolicySubsidising private demandSubsidising private investmentsLimited own fiscal policy − due to limited budgetary capacities− EIB, EFSICOM: veto player through EU State  aid controlProviding financial assistance to Member StatesBi-lateral/Mulit-lateral financial assistance (within the limits set by Article 125 TFEU): EFSF, ESMLimited financial assistance − due to limited budgetary capacities− due to limits set by Article 122(2) TFEU: EFSMMigration Crisis The ‘Migration Crisis’– Multiple crises• Crisis of the ‘Dublin System’ (responsibility for ‘irregular migrants’ of the MS whose borders were crossed irregularly)• Crisis of external border control• Crisis of common asylum standards (triggering migration of refugees within EU)– Crisis Response• Redistribution of refugees between Member States• Closing borders (externally as internally (Schengen border controls))• Financial assistance for Member States with a lot of refugeesMigration Crisis The ‘Migration Crisis’– Legal framework• Common Policy for Visa (Article 77(2)(a) TFEU)• Common European Asylum System (Article 78(2) TFEU)• Common Policy for Legal Immigration (Article 79(2) TFEU) limited by the right of Member States to define the volume of legal immigration• Emergency Powers for the EU in the event of Mass influx (Article 78(3) TFEU, Directive 2001/55/EC)• Solidarity clause in Article 80 TFEU• Decision-making in the Council requires qualified majority votingMigration CrisisCrisis Response Member States EURedistribution of RefugeesBi-lateral and multilateral agreements Provisional Measures (Article 78(3) TFEU)Long-term Measures (Article 78(2)(e) TFEU)External Border Control Bi-lateral and multilateral agreements Measures to strengthen the common external border control: Article 77(2)(b) and (d) TFEUEstablishing Border Control Agency: Article 77(2)(b) and (d) TFEUHarmonising AsylumStandardsCoordination of standards Measures to harmonise standards: Article 78(2) TFEUEstablishing Asylum Agency: Article 78(2) TFEUProviding financial assistance to Member StatesBi-lateral/Mulit-lateral financial assistance (within the limits set by Article 125 TFEU)Limited financial assistance − due to limited budgetary capacitiesComparing Euro-Crisis and Migration Crisis Both crises have in common:– Exogenous shock triggered developments that surpassed the capacities of single Member States to mitigate the negative effects of these developments– Consequence: Calling for European solutions• Relief for the most affected Member States (call for solidarity)• Protection against spillover effects from the most affected Member States to less affected Member States (call for effective control)– Solutions: Intergovernmental negotiations within the European Council– Intergovernmental solutions failed or were likely to failComparing Euro-Crisis and Migration Crisis Both crises differ:– EU legal framework at hand to find European solutions• Euro Crisis: Either no legal base or no budgetary capacities• Migration Crisis: Legal bases allowing for qualified majority voting– ‘Buying’ time for intergovernmental solutions through EU-wide action• Euro Crisis: ECB’s monetary policy eased financial market operators• Migration Crisis: No action.Comparing Euro-Crisis and Migration Crisis Interim Conclusions– When faced with a crisis, EU politics is not able to present quick European solutions– As a consequence, Member States start acting on their own– This creates an image of a ‘weak’ and ‘incompetent’ EU• from the perspective of Member States that are more affected by the crisis: EU refuses to help countries in need • from the perspective of Member States that are less affected by the crisis: EU undermines national efforts to shield a country against spillover effects– Reason for this can be found in (the combination of ):• lack of Union institutions that can act in emergency situations• Intergovernmental methodContributions of EU law Contributions of EU law to these interim conclusions– NOT: EU legal framework that does not provide for sufficient legal bases to act on the basis of qualified majority voting (probably the case for the ‘Euro-Crisis’, not the case for the ‘Migration Crisis’)– NOT: EU law that does not allow for empowering the Commission or Union agencies to act with executive powers (CJEU, Case C-270/12, UK v Parliament and Council (short selling))– Lack of trust in Member States’ willingness and ability to comply with EU requirements• Ignorance of economic policy guidelines and EDP in the past• Differing asylum standards despite extensive harmonisation (CEAS)Contributions of EU law Change of perspective– EU law does not distinguish between crisis and normal modus– EU legal framework is the same in normal times as in crisis times Issue of Compliance under EU law– Internal Market law• Individual rights enshrined in Primary law (no need to implement rights into national law)• Direct Effect and Supremacy of Primary law individual rights• National courts enforce EU individual rights against national institutions on the initiative of affected individuals• European Commission can rely on rights with direct effect against Member States• Individual rights in secondary law (which requires implementation) have vertical direct effect after the expiry of the transposition periodContributions of EU law Issue of Compliance under EU law– How does compliance work in ‘normal times’?• Euro legal framework– No direct effect– No individual rights• Migration law– Big parts: No individual rights and no direct effect– Where there are individual rights of third-country nationals, these rights are only enshrined in secondary law (which requires implementation)– These individual rights can have vertical direct effect after the expiry of the transposition periodConclusions Internal Market law shows that ‘supranationalism’ supersedes intergovernmental bargaining– Internal Market law allows for qualified majority voting concerning inconvenient subject-matters– Enforcement is secured by affected individuals in front of national courts Where conditions for effective supranationalism are not met, intergovernmentalism takes over– Shortcoming of unanimity voting and blockade by single countries– Loss of public support for EU measuresConclusions Based on this understanding …– the EU can establish and uphold an internal market in good times and in bad times in overcoming conflicting political will of Member States– outside the internal market, the EU can run other policy areas in good times but not overcome conflicting political will of Member States in crisis times Call for the EU to manage crises is valid but its current governance is not able to deliver (which creates frustration with citizens) …– as long as compliance in other fields than internal market is not enhanced;– as long as emergency competences are conferred upon the EU equipped with sufficient legitimacy to act against the conflicting political will of single Member StatesEuropean Research Centre for Economic and Financial Governanceeuro-cefg.euThank you for your attentionDr. René RepasiEuropean Research Centre for Economic and Financial Governance (EURO-CEFG)E-Mail: repasi@law.eur.nlPhone: +49(0)1777511124+31(0) 630770721RESEARCH FELLOWSFabian AmtenbrinkErasmus University Rotterdam (Scientific Director EURO-CEFG)Casper de VriesErasmus University RotterdamStefaan van den BogaertLeiden UniversityMatthias HaentjensLeiden UniversityMarkus HaverlandErasmus University RotterdamKlaus HeineErasmus University RotterdamMadeleine HosliLeiden UniversityAlessio M. PaccesErasmus University RotterdamErik PruytDelft University of TechnologyRené RepasiErasmus University Rotterdam (Scientific Coordinator EURO-CEFG)

Cross-Cutting Crises: Comparing Euro Crisis and Migration Crisis. A Legal Perspective.

https://repub.eur.nl/pub/104294/Cross-cutting-Crises-Repasi-.pdf

Cross-Cutting Crises: Comparing Euro Crisis and Migration Crisis. A Legal Perspective.

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