The EU Fiscal Stability Treaty: Summary and Analysis

 UPDATE: the approved text of the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union is available here. 

The Treaty on Stability, Coordination and Governance in the Economic and Monetary Union is expected to be discussed at the European Council meeting on 30 January 2012. I will use the last leaked draft to present a short summary of the treaty, and then analyze its content.

1.       Summary of the Fiscal Stability Treaty

The treaty covers a number of topics as follows:

Scope and Objectives

The contracting parties aim to  strengthen the economic pillar of the Economic and Monetary Union by adopting a set of rules intended to foster budgetary discipline through a fiscal compact, strengthen the coordination of economic policies, and improve the governance of the euro area.

Fiscal Compact

The overall principle is that the government budget must be balanced or in surplus. The annual structural deficit must not exceed 0.5% of GDP. In the event of significant observed deviations from this principle, a correction mechanism will be triggered automatically. The mechanism will include the obligation of the EU Member State to correct the deviations over a defined period of time.

These rules must be transposed in the national law of the participating EU Member States within one year of the entry into force of the fiscal stability treaty through provisions of “binding force and permanent character, preferably constitutional”.

When the ratio of the general government debt to GDP exceeds the 60%, the must  reduce it at an average rate of 1/20 per year as a benchmark.

The participating eurozone Member States commit to support the proposals or recommendations submitted by the European Commission where it considers that a Member State is in breach of the deficit criterion in the framework of an excessive deficit procedure.

If the European Commission concludes in its report that a participating EU Member State has failed to comply with the relevant rules in national law, the matter will be brought to the ECJ by one or more of the participating Member States. T he judgment of the ECJ will be binding on the parties in the procedure, which will have to take the necessary measures to comply with the judgment within a set period. If ECJ finds that the Contracting Party concerned has not complied with its judgment, it may impose on it a lump sum or a penalty payment appropriate in the circumstances that does not exceed 0.1% of GDP. The amounts imposed will be payable to the European Stability Mechanism.

Economic Policy, Coordination and Convergence

The participating Member States agree to take the necessary actions and measures in all the domains which are essential to the good functioning of the euro area in pursuit of the objectives of fostering competitiveness, promoting employment, contributing further to the sustainability of public finances and reinforcing financial stability. This will be done through the adoption of special provisions for the eurozone (art. 136 TFEU) and the enhanced cooperation procedure (art. 20 TEU).

Governance of the Euro Area

The Heads of State or Government of the eurozone Member States will meet informally in Euro Summit meetings, together with the President of the European Commission.

Euro Summit meetings will take place at least twice a year, to discuss the responsibilities of eurozone Member States, other issues concerning the governance of the euro area and the rules that apply to it, including strategic orientations for the conduct of economic policies and for improved competitiveness and increased convergence in the euro area. Non-eurozone Member states that participate in the fiscal stability treaty will be invited to participate at least once a year in the Euro Summit.

General and Final Provisions

The fiscal stability treaty will enter into force on 1 January 2013, provided that twelve participating eurozone Member States have deposited their instrument of ratification, or on the first day of the month following the deposit of the twelfth instrument of ratification, whichever is the earlier.

Within five years of the entry into force of the treaty, participating Member States will take the necessary steps in compliance with the provisions of TEU and TFEU, to incorporate the substance of the treaty into the legal framework of the European Union.

2.       Analysis of the provisions of the Fiscal Stability Treaty

One point must be made at the start: the fiscal stability treaty in its present form is not part of EU law. It is an instrument that is coordinated with and to large extent depending on primary EU law. This is also the main problem of the treaty.

The provisions are intentionally vague in order to avoid any conflict with the enhanced powers of the EU post-Lisbon. The only meaningful instrument is the sui generis infringement procedure in case a participating Member State has failed to apply the automated deficit correction mechanism. However, this procedure is substantially weakened by the fact that Member States, and not the European Commission, must petition the ECJ. This will happen only in extraordinary circumstances and with great unease.

In addition the provisions on economic coordination are totally bland. I fail to understand how these texts may enhance economic policy coordination – they are restating existing opportunities in EU law.

Another concern is whether the fiscal stability treaty will produce the intended effect. In a time when many are openly considering eurozone breakup we need much more substance and detail to stem the crisis. Yes, the UK government did its part in complicating the mitigation efforts, but we really need to respond to market expectations and to political realities today. Too many Europeans are already suffering from the effects of the continuing uncertainty and economic contraction.

What’s Behind the New Eurozone Fiscal Stability Union?

This European Council meeting was quite tumultuous, it appears. But we do have an outcome – a “fiscal stability union”. Below I present a preliminary critical assessment of the proposal, as well as a comment on the toxic role of the United Kingdom in the negotiations.

The “Fiscal Stability Union” in a Nutshell

The statement of eurozone leaders is scant on details. However, what we know is that:

• The golden fiscal stability rule that annual structural deficit should not exceed 0.5% of nominal GDP will be enshrined in eurozone Member States constitutions or equivalent acts;
• There will be an automatic correction mechanism in national legislation that shall be triggered in the event of deviation;
• There will be common standards for the automatic correction mechanism and compliance with those standards will be monitored by the European Commission; the transposition of those standards will be subjected to the jurisdiction of the European Court of Justice;
• Eurozone Member states will have to report their national debt issuance plans;
• When a Member State breaches the 3% budget deficit ceiling there will be automatic consequences unless a qualified majority of Member States decides otherwise;
• Some of those measures will be pursued by more active use of enhanced cooperation.

Urgent Measures

The eurozone leaders have also agreed on a couple of urgent measures:

• The European Stability Mechanism (ESM) treaty will enter into force as soon as Member States representing 90 % of the capital commitments have ratified it, preferably by July 2012;
• Ensuring a combined effective lending capacity of EUR 500 billion by the European Financial Stability Facility (EFSF) and ESM;
• Provision of additional resources for the IMF of up to EUR 200 billion (USD 270 billion), in the form of bilateral loans;
• Unanimity for the ESM will be replaced by a qualified majority of 85 % in case the Commission and the ECB conclude that an urgent decision related to financial assistance is needed.

Legal Analysis of Proposals

Given the objection of the United Kingdom, and possibly Hungary, the revision of EU Treaties seems impossible at the moment. That is why the eurozone leaders speak about an “international agreement” that should be signed by March 2012. This agreement will not be part of EU law (at least initially). I fail to see, though, how can the European Commission participate in the monitoring of fiscal stability in this case. Enhanced cooperation (Art. 20 TEU and art. 329 TFEU) seems more appropriate. The problem there is that only the European Commission can propose an enhanced cooperation to the Council, and the European Parliament must also approve it. This can lead to substantial delays of the procedure. That is why a two-track strategy appears more appropriate. Common standards for fiscal stability should be specified in the “international” agreement. Together with it the eurozone member States should initiate an enhanced cooperation authorization procedure. That is important, because any credible fiscal stability regime will need to transfer monitoring powers to the European Commission. This means that the drafting of rules must start now, in close cooperation with the European Commission and the European Parliament.

The Toxic Role of the United Kingdom

For some time I have been quite skeptical of UK’s role in the European integration process. There are deep divisions within the British political establishment on UK’s place in the EU. However, those internal divisions are spilling over to the EU and creating instability. The truth is that there are too many UK politicians that want the UK out of the EU, and in the European Economic Area.

I fully support the right of UK to define its own place in the integration process. With its decision to object to the new eurozone governance rules, the UK is basically signaling its determination to distance itself further from core EU countries. However, I think that the UK must not be allowed to unilaterally obstruct the further building of the European project. That is why a new political dialogue must be started among EU Member States about the possible modifications of UK’s scope of membership and responsibilities in the EU. This process must reflect the UK’s concerns, as well as the strategic objectives of the Union. What is clear is that we cannot continue to pretend that the UK is on board in support of the integration process.